Banks Criminal Justice Ethics 3 rd Edition 2013 SAGE Publications Inc Legal Ethics Historical Context During early colonization of United States lawyers were few in number poorly trained and not recognized as members of a profession ID: 587366
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Slide1
Chapter 5: Judges, Lawyers and Ethics
Banks, Criminal Justice Ethics 3
rd
Edition
© 2013 SAGE Publications, Inc.Slide2
Legal Ethics: Historical Context
During early colonization of United States lawyers were few in number, poorly trained, and not recognized as members of a profession
An independent legal profession in Virginia was problematic
Legitimacy of profession of being a lawyer was not accepted in Massachusetts until end of 17th centuryIn mid 18th-century, legal profession gained acceptance and lawyers began to develop professional identity
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide3
Legal Ethics: Historical Context
P
ractice of law grew rapidly in between American Revolution and Civil War (
Papke, 1986)Bar Association of New York City founded in 1870 and American Bar Association (ABA) founded in 1878In 1908, ABA accepted draft of Canons of Professional EthicsBy 1914, three-quarters of all state bar associations adopted them Canons replaced in 1969 by Code of Professional Responsibility that specifies ethical considerations for all lawyers
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide4
The Nature of Professional Ethics
Discussions of lawyer’s role often stress pursuit of justice as central purpose
Lawyer’s objectives derived from
adversarial system that equates justice with protection of rightsThe principal of partisanshipThe principle of neutrality
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide5
The Lawyer-Client Relationship
M
ost fundamental expression of legal ethics is that client’s interests should take precedence over those of lawyer
Incompetence or wrong-doing on part of lawyer is considered betrayal of client’s trustModern view of lawyers is they work together with clients and neither party should dominate the relationshipLawyer typically not required to accept any client who approaches him or her for assistance
ABA
Model rule
1.16
A
llows lawyer
to withdraw representation if “a client insists upon pursuing an objective that the lawyer considers repugnant or
imprudent”
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide6
The Lawyer-Client Relationship
S
upreme Court has ruled that even for serious criminal cases, defendant cannot be forced to be represented by counsel
Fundamental ethical duty of lawyers is maintaining confidentiality of their clientsConcept has been doubted by some who argue ethical rules should not protect guilty client over innocent third partyJeremy Bentham supported this viewGeneral duty of confidentiality should not be confused with lawyer-client privilege
Latter is principle relating to revealing information during trial
Provides that confidences revealed may not be used as evidence
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide7
Lawyers and Ethics
Client perjury
Freedman (1966)
Contends lawyer’s duty is to first attempt to persuade client not to commit perjury If the client persists, lawyer should regard and present testimony as if it were trueLaw on issue unclear until mid-1980sClient-crimeIf client consults
l
awyer in furtherance of crime or fraud, lawyer-client confidentiality is negated entirely, even if lawyer is unaware of client’s purpose
When exception applies, otherwise privileged information must be disclosed when proper demand is made
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide8
Defense Lawyers
In West, two main systems under which lawyers represent their clients:
The Adversarial System:
Focus is on due process and proceduresThe Inquisitorial System:Judge is concerned with “discovering the truth”
Given that criminal defense lawyers may have goals that extend beyond interest of client they may run into conflict with ethical principle of serving client’s interests loyally and effectively
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide9
Ethical Questions for Defense Lawyers
Is it ethically proper to represent a client accused of a criminal offense when the lawyer knows the client is guilty?
Model rules 3.1, 3.3 and 6.2 set ethical standards for these types of situationsSignificant difference between legally guilty clients, and factually guilty clientsReasons for defending those who are “guilty”By defending client, whether guilty or innocent, they are upholding person’s dignity as human being
L
awyers play role in ensuring others within system do their job properly and ethically
S
ome defense lawyers contend they can help people who are guilty, but undeserving of prison time, stay out of jail
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide10
Ethical Questions for Defense Lawyers
Is it ethically proper to cross-examine a witness with aim of discrediting credibility or reliability when lawyer knows witness is telling the truth?
May be argued that lawyer’s attempt to mislead jury by discrediting honest witness is immoral, even though legalFreedman (1966)Argues it is obligation of lawyer to act zealously in discrediting witness who testifies against clientNoonan (1966)
P
rotests Freedman’s position, stating that lawyer’s role is to help judge in making impartial and well informed decision
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide11
Ethical Questions for Defense Lawyers
Is it ethically proper to have witness give testimony when lawyer knows that witness will commit perjury?
Freedman (1966)
Proposes most common method of avoiding problem is lawyer withdrawing from caseNoonan (1966)Again disagrees with Freedman, arguing presentation of perjured testimony is unethical and will lead to injustice
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide12
Ethical Questions for Defense Lawyers
McKissick
v. United States
(1967) Court ruled that lawyer would be subject to disciplinary action if he continued case without reporting perjury to courtAlternatively, he was allowed to withdraw from caseDodd v. Florida Bar (1960)
C
ourt ruled that conduct of lawyer who advised several persons, including client, to perjure themselves was unethical enough for lawyer to be disbarred
Nix v. Whiteside
(1986)
Supreme Court held criminal defendant has no right to assistance of counsel in giving false testimony
Lawyers who refused to give such assistance or threatened to disclose perjury have not violated Sixth Amendment right to effective counsel
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide13
The Prosecutor
Has great deal of discretion in directing investigations, determining what crime will be charged and influencing punishment to be imposed
Is in role of protecting state and public, putting him or her into position that requires zealous advocacy
Many district attorneys required to maintain high rate of conviction and win well known cases that arouse strong passionsGershman (2001)Argues many have violated these dutiesThere are many prohibitions on prosecutorial conduct
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide14
The Duty to Ensure Justice is Done
According to Supreme Court, primary duty for prosecutor is to ensure justice is done
P
rosecutor must assist court in arriving at “the truth” in a fair mannerAccording to Model Rule 3.8, a prosecutor must:Not prosecute charge unless it is supported by probable cause; Make reasonable efforts to ensure accused has been advised of right to obtain counsel and been given reasonable opportunity to do so;
N
ot seek to secure from unrepresented defendant any waiver of important pretrial rights such as right to preliminary hearing;
M
ake timely disclosure to defense of all evidence or information they are aware of that tend to negate guilt of accused or that mitigate the offense;
D
isclose at sentencing to defense and court all mitigating information known unless court directs otherwise
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide15
Discretion to Bring Charges
Charging decisions made by prosecutors protected by total immunity
In some situations, prosecutor may decide not to enforce particular statute and instead follow policy of non-prosecution
ABA suggests in deciding whether to bring charges, criteria to be considered should include: Prosecutor’s assessment of guilt, Harm caused by offense, Disproportion of punishment to offense,
Possibility of improper motives for complaint,
Any extended nonenforcement of statute where community accepts
nonenforcement
,
Reluctance of victim to testify,
Cooperation of accused in arrest or conviction of others,
Possibility of prosecution by another jurisdiction
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide16
Disclosure of Evidence to the Defense
American Bar Association Standing Committee on Ethics and Professional Responsibility has noted “Courts as well as commentators have recognized that the ethical obligation is more demanding than the constitutional obligation”
P
rosecutor’s constitutional duty to make voluntary disclosure of evidence to defense is set out in Brady v. Maryland (1963) and subsequent casesProsecutors have duty to disclose evidence that exculpates defendant even if defense team does not request it
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide17
Disclosure of Evidence to the Defense
United States v.
Agurs
(1976)Supreme Court held exculpatory evidence not made available could result in denial of constitutional right to fair trialPretrial disclosure standard remain imprecise in number of waysThere are also issues about timing of disclosureWhen prosecutors violate, he or she liable to be disbarred
Innocence Project (2011)
Reported prosecutorial misconduct has contributed to convictions in 45% of the first 100 cases of exoneration revealed
Have been calls for systematic review of disclosure practices
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide18
Plea Bargaining
Between time charges have been filed and trial, prosecutor may begin negotiating with defense team to arrive at plea bargain
G
oal is to achieve compromise by reducing charges against defendant or securing reduced sentence in exchange for guilty plea Not supported by public even though it disposes of 95% of all criminal casesDespite moral standards dictated by ABA, prosecutors may deliberately overcharge defendant as plea bargaining tacticFreedman (1975b) views tactic as way to coerce defendants into giving up right to a trial by jury
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide19
Plea Bargaining
McDonough, McDonough, and Keenan (2000)
P
oint out that although plea bargaining considered to be beneficial for defendant, it really is way for prosecutor to save timeAdditionally, saves expense of going through trial and prevents criminal justice system from overcrowdingKipnis (2001)Both sides have bargaining powerPlea bargains must be voluntary
I
ssue of whether duress has been applied is problematic because defendants may feel pressured to choose between something certain and something uncertain
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide20
Plea Bargaining
Gottfredson and Gottfredson (1988) summarize criticisms as follows:
Some innocent persons may be induced to plead guilty by promises of leniency
Result in excessive leniencyIs impossible to controlShifts sentencing policy to prosecutor, and blurs distinction between guilt and proper punishment
What would be the effects of
ban
on plea bargaining?
One researcher found that in Alaska,
ban
on plea bargaining did not create overloaded
systems
D
efendants
plead guilty at about
same
rate and there was little change in conviction
rates
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide21
Plea Bargaining
Gerber (1999)
S
uggests plea bargaining used so often because of complexity of trial proceedingsSuggests lawyers’ caseloads are major reason for practice and that neither side wants to try casesExplains political aspects by suggesting elected district attorney is concerned with securing high conviction rate, maintaining good relationships with private lawyers of influence, and avoiding losing high profile trialsOne consequence of plea bargaining is absence public trial showing accountability and condemnation
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide22
Prosecutorial Misconduct
Freedman (1975b)
A
rgues ABA ethical standards inadequate in ensuring ethical duty of prosecutorMost cases of misconduct result from issues such as conflict of interest, failure to enforce law, and filing charges vindictively (Wolfram, 1986)Gersham (1986)Examples of “outrageous conduct”:Miller v. Pate
(1967)
United States v. Perry
(1981)
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide23
Gershman (2001)I
dentifies misleading types of prosecutorial misconduct as including:
A
ttempts to place in jurors’ minds innuendo damaging and prejudicial to defendant Allusions to expert testimony casting doubt on defense witness’s credibilityAttempts to enhance witness’s credibility by referring to willingness to take polygraph testComments and questions suggesting defendant’s reliance upon constitutional rights establishes evidence of guilt
Prosecutorial Misconduct
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide24
Prosecutorial Misconduct
Gershman (1986)
Also argues misconduct continues to exist because penalties imposed are absent or inadequate
Prosecutors might aim to ensure justice and, believing most defendants are guilty, may feel compelled to avoid problems that may lead to not-guilty verdictCommentators also point out that Supreme Court has been reluctant to control prosecutorial misconduct (Fisher, 1988) Gershman (1987)
C
ontends court has refused to identify ethical standards and encourages “prosecutorial overreaching”
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide25
Prosecutorial Misconduct
State bar associations and disciplinary bodies empowered to sanction misconduct but do so infrequently
Model Rule 3.6
Forbids making specific kinds of statements out of court that might prejudice a criminal trialIncludes an exception for necessary statementsDeferred sentencingWhen prosecutor delays sentencing of witness who has plead guilty but will not be sentenced until giving testimony against another defendant
Is also not allowed
Can be considered witness coercion
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide26
Judicial Ethics
Judges held to higher standards of law than lawyers or others not invested with public trust
In 1990, ABA adopted Model Code of Judicial Conduct that establishes standards for ethical conduct by judges
Not intended as exhaustive guideJudges must be faithful to lawNot be swayed by partisan interestsSome judges elected through partisan or nonpartisan elections
Partisan election
Judicial candidates nominated through conventions or primaries
Nonpartisan election
Does not provide a candidate’s political party on ballot
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide27
Judicial Elections
Those critical of partisan elections argue that:
Voters generally have no knowledge of candidates’ qualifications and are not competent to assess qualifications
Successful candidates likely to feel obligated to political leaders who selected them and those who contributed to campaign fundsMany otherwise qualified candidates deterred from seeking office because of requirement to conduct political campaignsHaving to periodically seek re-election discourages many potentially worthwhile candidates
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide28
Ethical Rules Governing Judges
Judges expected to excuse themselves in any case in which impartiality may be questioned
Within judge’s personal activities, he or she is not to behave in any way that will cast doubt on his or her impartiality
Financially, judge is not to engage in business and financial dealings that may be seen as exploiting role as judge, or to become involved in business relationships with lawyers or other persons likely to come before courtFinally, judges are not to criticize or commend decisions of any jury
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.Slide29
Chapter Summary
Lawyers and judges enjoy benefit of detailed ethical rules
For lawyers, ethical dilemmas can usually be solved by applying appropriate ethical standard
Helps to simplify moral issues arising within legal practiceMuch debate surrounds defense lawyer’s silence concerning his or her client’s criminal behaviorProsecutors are in unique position because of pressures and tensions they are subjected to
Given wide discretionary power, an incredible potential for corrupt judges exists
Banks, Criminal Justice Ethics. © 2017, SAGE Publications.