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Chapter10EthicalMisconductontheCourtsandResponses.pptx

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Ethical Dilemmas and Decisions in Criminal Justice

Tenth Edition

Chapter 10

Ethical Misconduct in the Courts and Responses

Learning Objectives

Detail the types of misconduct that have been

associated with defense attorneys, prosecutors,

and judges.

Explain the reasons why such misconduct occurs.

Describe the Innocence Projects, how many individuals have been found to be wrongly imprisoned, and why.

Discuss some proposals to improve the justice system and reduce ethical misconduct

Describe the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.

Defense Attorney Misconduct

Ineffective Counsel

One of the most often cited reasons for false convictions

Legal standard for what constitutes ineffective counsel is set quite high

State appellate court said that if a lawyer wasn’t sleeping during a crucial part of the trial, it wasn’t ineffective counsel.

Most misconduct by defense attorneys probably falls into the realm of negligence, not criminal behaviour.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Prosecutorial Misconduct

The types of misconduct range from minor lapses of ethical rules to commission of criminal acts.

Most prosecutorial misconduct involves unethical or illegal means to obtain convictions, not pecuniary graft.

Four types of prosecutorial misconduct:

Withholding exculpatory evidence

Misusing pretrial publicity

Using false evidence in court

Using peremptory challenges to exclude jurors.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Suborning Perjury and Jailhouse Informants

Model Rule 3.3(a) forbids an attorney from knowingly allowing false evidence to be admitted; some argue that “knowingly” is too strict a standard because prosecutors have argued that they did not “know” that the evidence was false.

Some argue that an objective negligence standard should be used instead.

When a prosecution witness perjures himself or herself, the prosecutor has an affirmative duty to bring it to the attention of the court.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Misconduct Involving Expert Witnesses

Misconduct also occurs when prosecutors intentionally use scientific evidence that they know to be false.

Prosecutors may bolster a witness’s credentials or allow him or her to make gratuitous and unsupported claims on the witness stand, such as to state “unequivocally” that the fingerprint, hair, or lip print was the defendant’s.

Prosecutors have had experts suppress information that was favorable to the defense and not put it in their report or not conduct tests that might be helpful to the defense.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Brady Violations

The most common charge leveled against prosecutors, failure to disclose evidence, stems from a duty to reveal exculpatory evidence to the defense.

Prosecutors who engage in these acts not only risk losing the immediate case, but also lose their credibility and undercut the trust and faith we place in the justice system.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Judicial Misconduct

Judicial misconduct is rare, but does occur.

Neutrality is questioned when judges voice strong opinions on issues or cases.

A judge may recuse him/herself if he/she has a vested interest in the issue or one of the parties involved.

Often the mere appearance of impropriety is sufficient to warrant recusal.

Lack of courtroom decorum could, in extreme cases, represent judicial misconduct.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Biased Decisions

Most judges strive to fulfill their role with integrity and honesty, taking care to protect the appearance and reality of justice.

Misconduct is alleged when judges do not recuse themselves and/or act in ways that give some preferential treatment.

Attorneys and judges are prohibited from discussing a case outside the presence of the other attorney.

In some cases neutrality is questioned when judges voice strong opinions on issues or cases.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Other Misconduct

Judges, for the most part, are like police officers and prosecutors.

Failing to inform defendants of their rights, coercing guilty pleas, exceeding sentencing authority, exceeding bail authority, denying full and fair hearings or trials, abusing the criminal contempt power, ignoring probable cause requirements, denying defendants’ rights, and penalizing defendants for exercising their rights.

Judges have a duty to conclude judicial processing with reasonable punctuality.

LO 1: Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

Factors in Wrongful Convictions

False convictions have occurred due to:

State punitiveness

A wesk case

Error during forensic testimony

Age and prior criminal history of the defendant

Honest mistaken identity by an eyewitness

Poor representation by a defense attorney

LO 3: Describe some factors in wrongful convictions.

Mistaken Eyewitness Testimony

Mistaken eyewitness testimony is the most frequently identified factor in wrongful convictions.

Memory not as accurate as some believe.

In some cases improper police or prosecutor behavior influenced witnesses to identify the wrong person. Police officers may repeatedly ask victims if they were sure that the suspect was not the person, or using “show-ups” that present only one person to the witness instead of a line-up.

Supreme Court rejected argument that judicial review of eyewitness testimony was necessary.

LO 3: Describe some factors in wrongful convictions.

False Confessions

False confessions are so powerful that juries have convicted individuals even when there is exculpatory DNA evidence introduced at trial.

LO 3: Describe some factors in wrongful convictions.

Racial Bias

A prevalent factor in false convictions is a more subtle form of racism.

Tend to prejudge the guilt of the accused, especially if they are black men.

Pervasive stereotypical belief that all defendants are guilty, and a disproportionate number of defendants are black.

Distorts decision making of prosecutors who may sift and use evidence in a way that will support these predetermined beliefs.

Also noted is a higher rate of error in cross-racial identification, stereotyping

Lack of resources among minority defendants

LO 3: Describe some factors in wrongful convictions.

Confirmatory Bias

Confirmatory bias is when someone ignores evidence that is contrary to what they believe.

Prosecutors may ignore evidence that refutes their theory

May lead to the noble-cause corruption.

Prosecutors bend and even break the rules when they are sure the defendant is guilty.

LO 3: Describe some factors in wrongful convictions.

Explanations of Prosecutor Misconduct (1 of 2)

The presence of confirmatory bias (human tendency to seek to confirm rather than disconfirm)

Selective information processing (only recognizing evidence to fit one’s theory)

Belief perseverance (believing one’s original theory of the case despite evidence to the contrary)

Avoidance of cognitive dissonance (adjusting beliefs to maintain existing self-perceptions)

LO 2: Explain the reasons why such misconduct occurs.

Explanations of Prosecutor Misconduct (2 of 2)

Cummings used Bandura’s moral disengagement theory to explain intentional prosecutorial misconduct, concentrating on three types most relevant to prosecutors:

Reconstructing conduct as morally justified

Obscuring personal agency

Blaming or dehumanizing defendants

LO 2: Explain the reasons why such misconduct occurs.

Explanations for Misconduct of Judges

The immunity of judges insulates them from the effects of their decisions.

Difficult for attorneys to challenge judges’ actions.

Some judges may believe they are invulnerable.

Judges have immense power.

State judicial commissions rarely sanction judges, and voters tend to be fairly oblivious to the reputation of judges.

LO 2: Explain the reasons why such misconduct occurs.

Responding to Misconduct

ABA offers formal and informal opinions when charges of impropriety have been made.

State bar association can sanction offending attorneys in private or in public.

Only three percent of investigations by state disciplinary committees result in public sanctions.

Only one percent of investigations end in disbarment.

LO 4: Discuss some proposals to improve the justice system and reduce ethical misconduct.

Better Training, Better Supervision

Prosecutors do not get sufficient training on Brady obligations.

Require prosecutors to work with Innocence Commission.

There should also be clear and public policies in each prosecutor’s office concerning the use of jailhouse informants and turning over exculpatory material (Kirchmeier et al., 2009).

LO 4: Discuss some proposals to improve the justice system and reduce ethical misconduct.

Other Suggestions (1 of 4)

Conviction Integrity Units

Innocence Project affiliates are growing.

Mandatory DNA Testing

DNA has been the vehicle by which many innocent prisoners have obtained their release from prison.

Some states have mandated DNA testing of old cases.

LO 4: Discuss some proposals to improve the justice system and reduce ethical misconduct.

Other Suggestions (2 of 4)

Labs and Enhanced Due-Process Procedures

More than half of all labs in the country report directly to a law enforcement organization.

Bias is subtle (cognitive bias).

Increase accuracy of identifications (e.g., sequential photo arrays, and double-blind examiners).

Eliminate use of jailhouse informants because of the high probability that they are lying in order to gain some benefit.

LO 4: Discuss some proposals to improve the justice system and reduce ethical misconduct.

Other Suggestions (3 of 4)

Sullivan and Possley argue that the way to reduce misconduct includes these four approaches:

instituting an open-file pretrial discovery requirement on prosecutors (similar to the Morton Act in Texas) that could even substitute for the Brady rule;

abandoning the harmless error test for reversing convictions; even if there is sufficient evidence of guilt, serious prosecutorial misconduct should be met with reversal;

LO 4: Discuss some proposals to improve the justice system and reduce ethical misconduct.

Other Suggestions (4 of 4)

identifying errant prosecutors by name in trial and appellate opinions;

stripping prosecutors of full immunity and give them qualified immunity instead as protection from civil damages for misconduct; and

authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors.

LO 4: Discuss some proposals to improve the justice system and reduce ethical misconduct.

Judicial Independence and the Constitution

Judges wield great discretion that should be used without bias.

Like the rest of us, judges are grounded in their personal ethical belief system.

Implementation of law (as with creation of law) can be a political process (note: firing of U.S. Attorneys).

The judiciary is supposed to be separate from the executive or legislative branch of government, but is it?

LO 5: Describe the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.

Judicial Activism

“Conservative” judges—strict constructionists—support individual rights specified in the Constitution or created by some other recognized legal source.

“Liberal” judges—interpretationists—support rights that the Framers might have recognized or that should be recognized due to “evolving standards.”

LO 5: Describe the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.

Natural Rights

To be free

To be treated equal to other groups

To be able to make decisions about personal matters without governmental interference

To be free from torture and punishments that degrade the human spirit

To have some protections against state power

LO 5: Describe the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.

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