Chapter 5: Judges, Lawyers and Ethics

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Chapter 5: Judges, Lawyers and Ethics

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 professionAn independent legal profession in Virginia was problematicLegitimacy 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.

Legal Ethics: Historical Context

Practice 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.

The Nature of Professional Ethics

Discussions of lawyer’s role often stress pursuit of justice as central purposeLawyer’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.

The Lawyer-Client Relationship

Most fundamental expression of legal ethics is that client’s interests should take precedence over those of lawyerIncompetence 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 assistanceABA Model rule 1.16Allows 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.

The Lawyer-Client Relationship

Supreme Court has ruled that even for serious criminal cases, defendant cannot be forced to be represented by counselFundamental 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 privilegeLatter is principle relating to revealing information during trialProvides that confidences revealed may not be used as evidence

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Lawyers and Ethics

Client perjuryFreedman (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 lawyer in furtherance of crime or fraud, lawyer-client confidentiality is negated entirely, even if lawyer is unaware of client’s purposeWhen exception applies, otherwise privileged information must be disclosed when proper demand is made

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

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.

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 beingLawyers play role in ensuring others within system do their job properly and ethicallySome 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.

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)Protests 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.

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.

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)Court ruled that conduct of lawyer who advised several persons, including client, to perjure themselves was unethical enough for lawyer to be disbarredNix v. Whiteside (1986)Supreme Court held criminal defendant has no right to assistance of counsel in giving false testimonyLawyers 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.

The Prosecutor

Has great deal of discretion in directing investigations, determining what crime will be charged and influencing punishment to be imposedIs in role of protecting state and public, putting him or her into position that requires zealous advocacyMany 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.

The Duty to Ensure Justice is Done

According to Supreme Court, primary duty for prosecutor is to ensure justice is doneProsecutor 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; Not seek to secure from unrepresented defendant any waiver of important pretrial rights such as right to preliminary hearing; Make 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; Disclose at sentencing to defense and court all mitigating information known unless court directs otherwise

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Discretion to Bring Charges

Charging decisions made by prosecutors protected by total immunityIn some situations, prosecutor may decide not to enforce particular statute and instead follow policy of non-prosecutionABA 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.

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”Prosecutor’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.

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 disbarredInnocence Project (2011)Reported prosecutorial misconduct has contributed to convictions in 45% of the first 100 cases of exoneration revealedHave been calls for systematic review of disclosure practices

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Plea Bargaining

Between time charges have been filed and trial, prosecutor may begin negotiating with defense team to arrive at plea bargainGoal 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.

Plea Bargaining

McDonough, McDonough, and Keenan (2000)Point 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 voluntaryIssue 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.

Plea Bargaining

Gottfredson and Gottfredson (1988) summarize criticisms as follows: Some innocent persons may be induced to plead guilty by promises of leniencyResult in excessive leniencyIs impossible to controlShifts sentencing policy to prosecutor, and blurs distinction between guilt and proper punishmentWhat would be the effects of ban on plea bargaining?One researcher found that in Alaska, ban on plea bargaining did not create overloaded systemsDefendants plead guilty at about same rate and there was little change in conviction rates

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Plea Bargaining

Gerber (1999)Suggests 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.

Prosecutorial Misconduct

Freedman (1975b)Argues 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.

Gershman (2001)Identifies misleading types of prosecutorial misconduct as including:Attempts 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.

Prosecutorial Misconduct

Gershman (1986)Also argues misconduct continues to exist because penalties imposed are absent or inadequateProsecutors 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)Contends court has refused to identify ethical standards and encourages “prosecutorial overreaching”

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Prosecutorial Misconduct

State bar associations and disciplinary bodies empowered to sanction misconduct but do so infrequentlyModel Rule 3.6Forbids 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 defendantIs also not allowedCan be considered witness coercion

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Judicial Ethics

Judges held to higher standards of law than lawyers or others not invested with public trustIn 1990, ABA adopted Model Code of Judicial Conduct that establishes standards for ethical conduct by judgesNot intended as exhaustive guideJudges must be faithful to lawNot be swayed by partisan interestsSome judges elected through partisan or nonpartisan electionsPartisan electionJudicial candidates nominated through conventions or primariesNonpartisan electionDoes not provide a candidate’s political party on ballot

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

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.

Ethical Rules Governing Judges

Judges expected to excuse themselves in any case in which impartiality may be questionedWithin 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.

Chapter Summary

Lawyers and judges enjoy benefit of detailed ethical rules For lawyers, ethical dilemmas can usually be solved by applying appropriate ethical standardHelps 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 toGiven wide discretionary power, an incredible potential for corrupt judges exists

Banks, Criminal Justice Ethics. © 2017, SAGE Publications.