University of Wisconsin–Madison

Answering Prosecutor and Public Defender Hypotheticals

If you are interviewing for a position at a Public Defender (PD) or Prosecutor’s Office, you should be prepared to answer hypothetical questions in the interview. A hypothetical question is one that asks the interviewee what he or she would do in a certain fact scenario. The following tips should come in handy when preparing for one of these interviews:

  1. Have an overarching theme and stick with it! No matter the question, your answer can usually be framed around a central theme. As a general matter, a solid theme for prosecution interviews is doing what is in the interest of justice. When you discuss your answer, you should have an eye on a just outcome. Not on a conviction. Not on pleasing the victim. To serve the interests of justice, your ethics are of paramount importance. You do not need to be an expert on the rules of professional responsibility, but you should know about the duty to disclose exculpatory evidence (Brady). Note that exculpatory evidence is not the same as a fact that weakens your case. Even if you do not know for sure what the rules would require, you should be able to tell the interviewer you have spotted an ethical issue. The central theme of PD interviews should be the client. As a public defender, your duty is to your client. Not to crime victims. Not to a judge. Not to a prosecutor. This can sometimes be uncomfortable and sometimes be highly adversarial. Your job is to show the interviewer you are comfortable with that reality and that you value client loyalty and confidentiality, while acknowledging that you must operate within the confines of the rules of professional ethics.

  2. Have a road map for your answers! Treat the hypo like a law school exam. Tell the interviewer what issues you have spotted in the hypothetical and then proceed to discuss each issue. Remember, you may not have the resolution, but you may know there is an issue. It is fine to tell the interviewer that you have spotted an issue and will consult the applicable rules and discuss with a supervisor before taking action. For example, consider the following answers to a prosecution hypothetical:

    Hypo: You receive a police report that just starts with finding cocaine in a car after a traffic stop. You have a meeting with police officer to discuss the circumstances of the search. What questions would you have for him or her?

    Answer 1: I would ask if they had a warrant. I would ask what they pulled the person over for. I would ask if the person had a warrant for arrest. I would ask about exceptions. Oh, I would ask where it was found.

    Answer 2: I clearly don’t have enough facts to make any conclusions about this search. I would break my questions up into three categories: 1) what were the circumstances for the stop, 2) what were the circumstances surrounding the search, and 3) questions designed to figure out whether the search was legal. With respect to the first category, I would want to find as much as I could about the reasons for the stop. Was there a traffic violation? Was the dash camera running? If there was a traffic violation, did anyone else see it? With respect to the second category, I would want to gather as many facts about after the officer made contact with the defendant. Did he ask for ID? Did the driver have a warrant for his arrest? Was the driver cooperative? How was his demeanor? When did the search occur? What was the scope of the search? Where was the cocaine found? Finally, I would ask whether they had a search warrant for the car, if the driver gave consent, what led the officers to believe contraband may be in the car, or if the search was incident to arrest.

  3. If you have real experience, draw on it! Did you do the prosecution project or the public defender project? If so, use the hypothetical to showcase that experience. If you are talking about what you would do in any given scenario, you are always more credible if you talk about what you have done. For example, compare the following to answers to a PD hypothetical.
    Hypo: You are representing a client who has been charged with manufacture of methamphetamine. He has a prior conviction for possession of precursors and was found in a burning house with multiple boxes of pseudoephedrine and other common methamphetamine ingredients. He strongly asserts his innocence and wants to go to trial. The prosecutor is offering to recommend a five-year prison sentence if he pleads guilty. However, if he proceeds to trial and loses, he will likely face a fifteen-year sentence. How would you advise the client?
    Answer 1: I would make sure he understood that his sentence would be longer if we lose and that our chances at trial aren’t great.
    Answer 2: In situations like these, it is important that the attorney and the client have a frank, honest, and trusting relationship. In order to accomplish this, first, I would gather all the facts. When I was at the Brown County Public Defender, I learned that my clients trusted me more if they felt I listened to them and heard all applicable facts. I learned how important it is to build rapport and credibility with clients. Accordingly, I would seek to do that in this scenario. I would ask my client if he had any witnesses for an investigator to interview. If I was confident I had all the relevant evidence and facts, I would thoroughly explain the elements of the offense charged and the evidence the DA would offer for each element. I would ask my client often if he understood or if he had any questions. I would ask him if he felt I was missing any applicable evidence or defenses. After I was convinced he knew the elements and the evidence, I would explain to him that whether to plead guilty is entirely his decision. I would then explain the consequences of a guilty plea and how a trial would proceed.

  4. Make your passion for the job known! If the interview is strictly hypotheticals (as some offices do), you may feel like you never get a chance to answer the question: why do you want this job? You need to try to weave this narrative into your answers! Consider the following answers:
    Hypo: You are prosecuting a man for domestic abuse. He has four prior convictions for domestic abuse. In your case, a surveillance camera records him punching his wife on an elevator. An independent witness called 911. That witness is cooperative. The victim initially spoke to police and allowed pictures to be taken of her face at the hospital. She has a black eye and a broken jaw. The victim has now told you she does not wish to go forward and that she will not testify. Do you proceed with the case?
    Answer 1: I can probably convict him with the video and the witness, so yes.
    Answer 2: I would prosecute this case. I believe strongly that even without the cooperative victim, I could prove the defendant guilty beyond a reasonable doubt. I believe prosecutors have an obligation to the community to go forward with cases against violent repeat domestic abusers provided they have the evidence to do so. This is one of the reasons I am so passionate about becoming a prosecutor. As you can see from my resume, I have been involved in domestic violence prevention organizations since my undergraduate career and am knowledgeable about the dynamics involved. I am confident I could handle situations like the one you describe with empathy for the victim coupled with the need to protect society. 

Submitted by OCPD on August 30, 2016

This article appears in the categories: OCPD Articles