ETHICS The Movie By Steve Wilson Tom Lockridge
ETHICS: The Movie By Steve Wilson & Tom Lockridge
Legal Advisor • National Prosecution Standards 22. 1 “Prosecution should provide legal advice to the local law enforcement agencies concerning sufficiency of evidence, warrants, and similar matters relating to investigation of criminal cases. . . encourage police to seek this advice as early as possible in the investigation of a case. ”
Prosecutor Liability • Absolute Immunity- for initiating a charge, for • presenting the prosecution case and for other actions “closely associated with the judicial process. ” Qualified Immunity- objective standard creating liability only where the official violates clearly established statutory or constitutional rights that a reasonable person would have known.
Charging Decision • Imbler v. Pachtman, 424 U. S. 409 (1976): State prosecutor has “absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state’s case at trial. ”
Advice to Police • Burns v. Reed, 500 U. S. 478 (1991) • Prosecutor had only qualified immunity for advising police on the propriety of hypnotizing the suspect and on whether probable cause existed to arrest the suspect. Note: The prosecutor enjoyed absolute immunity during a P. C. hearing to obtain a search warrant.
Candor Towards the Tribunal • I. R. P. C. Rule 3. 3 (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Case Evaluation • Buckley v. Fitzsimmons, 509 U. S. 259(1993): Recognized that certain actions of a prosecutor were necessarily preliminary to the initiation of prosecution, and were protected by absolute immunity. Such acts include the “professional evaluation of evidence assembled” and appropriate preparation for its presentation after a decision to seek an indictment is made.
Absolute Immunity • Initiation of charges and statements • • made during the presentation of the case, including claims of presenting false or perjured testimony. Prosecution of appeal, habeas etc. Retaining the Defendant’s property in evidence and/or for civil forfeiture proceedings.
Absolute Immunity • Bail issues. • Probable cause hearings and Grand • • Jury proceedings. “Batson” violations. Plea bargaining claims.
Qualified Immunity • Media contact, press releases, and • • • statements. Pre-seizure deals of asset forfeiture. Investigative activities, interrogations, execution of search warrants, line-ups, videotaping child victims, etc. Claims of failure to investigate.
Qualified Immunity • Legal advise to the police during investigation. • Investigative activities claimed to • • constitute coercion of false testimony or fabricated evidence. Activities that make the prosecutor a witness. Advice to police regarding forcibly drawing blood, etc.
Legal Advisor • National Prosecution Standards 22. 1 “Prosecution should provide legal advice to the local law enforcement agencies concerning sufficiency of evidence, warrants, and similar matters relating to investigation of criminal cases. . . encourage police to seek this advice as early as possible in the investigation of a case. ”
Charging Decision • Kalina v. Fletcher, 522 U. S. 118 (1997) Prosecutor protected by absolute immunity in charging decision including preparation and filing of information and motion for arrest warrant. BUT only qualified immunity for executing certification of probable cause since it could be made by any competent witness.
Issue Spotting • No Miranda warnings • Police lie about DNA and fingerprints • Sam asks for a lawyer • Case already filed in court system • Confession then advise and tape
Relations with Defendants • National Prosecution Standards 24. 2 “. . . prosecutor should make certain that the defendant is treated with honesty, fairness, and full disclosure of his liabilities. . . If legally required, under the circumstances, the prosecutor should advise the defendant of his rights. ”
Unrepresented Persons • I. R. P. C. 4. 3 When dealing with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested. When a lawyer knows or should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts correct the misunderstanding.
Special Responsibilities of the Prosecutor I. R. P. C. 3. 8 (a) “The duty of a public prosecutor or other governmental lawyer is to seek justice, not merely to convict. ”
Commentary • I. R. P. C. 3. 8 Commentary “The State’s attorney in his official capacity is the representative of all the people, including the defendant, and it was as much his duty to safeguard the constitutional rights of the defendant as those of any other citizen. ” People v. Cochran, 313 Ill. 508 (1924)
Commentary • Model Rule 3. 8 Commentary A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.
Pretrial Publicity • I. R. P. C. Rule 3. 6 (a) A lawyer participating in the investigation or litigation of a matter “shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” if the lawyer knows or reasonably should know it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Pretrial Publicity • “I’m pleased to announce the arrest. . . ” • “Sam Locker has been charged with. . . ” • “Mr. Locker has been positively identified. . ” • “Mrs. Carter taught school. . . impeccable • character” “Mr. Locker admitted his involvement. . . ”
Pretrial Publicity • “Mr. Locker named Ben Johansen. . ” • “Mr. Locker will be entering a guilty • • plea. . ” “First rate investigation. . . confident these two will be convicted. ” “Write it down, this case is a slam dunk. ”
Special Responsibilities of the Prosecutor • I. R. P. C. 3. 8(e) The prosecutor “shall refrain from making extrajudicial comments that would pose a serious and imminent threat of heightening public condemnation of the accused, except for statements necessary to inform the public of the nature and extent of the prosecutor’s action AND that serve a legitimate law enforcement purpose. ”
Special Responsibilities of the Prosecutor • I. R. P. C. 3. 8(d) . . . shall exercise reasonable care to prevent investigators, law enforcement, employees or others assisting or associated with the prosecutor from making statements the prosecutor would be prohibited from making under Rule 3. 6.
Pretrial Publicity • “We have arrest warrant for Ben. . . ” • “We request assistance of the public in • apprehending the suspect. ” “We will provide a photograph. . . ”
Pretrial Publicity • “Should be considered armed and • • extremely dangerous. ” “Awaiting crime lab ballistics from a pistol we believe to be the murder weapon. ” “Confident this evidence will help convict Mr. Johansen at trial. ”
Prior Representation • I. R. P. C. 1. 9 A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter. . . whose interests are materially adverse to the interests of the former client, unless the former client consents after disclosure.
Prior Representation • I. R. P. C. 1. 11(c) “. . . a lawyer serving as a public officer or employee shall not: (1) Participate in a matter in which the lawyer participated personally and substantially while in private practice. . . ”
Prior Representation • I. R. P. C. 1. 11(d) As used in this rule, the term “matter” includes: “(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties. . . ”
Candor Toward the Tribunal • I. R. P. C. 3. 3 (a) A lawyer shall not: (1) make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false.
Truthfulness in Statements • I. R. P. C. 4. 1 “In the course of representing a client a lawyer shall not: (a) make a statement of material fact or law to a third person which the lawyer knows or reasonably should know is false; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a. . . fraudulent act by a client, unless disclosure is prohibited by Rule 1. 6. ”
Candor Toward the Tribunal • I. R. P. C. 3. 3 (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Competent Counsel • I. R. P. C. 1. 1 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation. ”
Supervising Lawyer • I. R. P. C. 5. 1 (b) Each lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to these Rules.
Supervising Lawyer • I. R. P. C. 5. 1 (c) A lawyer shall be responsible for another lawyer’s violation only if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct; or (2) the lawyer is a partner or supervisor of other lawyer, and knows of the conduct at time when consequences could be avoided or mitigated but fails to take reasonable remedial action.
Subordinate Lawyer • I. R. P. C. 5. 2 (a) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another. (b) A subordinate lawyer does not violate the rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Misconduct • National Prosecution Standards 25. 5 • Prosecutor must take action to substantiate or dispel reasonable suspicion of defense counsel misconduct. National Prosecution Standards 25. 6 Prosecutor has responsibility to report misconduct by defense counsel to the appropriate authority and to seek sanctions for the conduct.
Reporting Misconduct • I. R. P. C. 8. 3 (a) A lawyer who knows that another lawyer has committed an act of dishonesty, fraud, deceit or misrepresentation, shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
Legal Fees • I. R. P. C. 1. 5 (d) A lawyer shall not enter into an arrangement for, charge or collect: * * * * (2) a contingent fee for representing a defendant in a criminal case.
Legal Fees • ABA Defense Standards 4 -3. 4 Defense counsel, prior to conclusion of all aspects of the matter giving rise to his employment, should not enter into any agreement or understanding with a client by which defense counsel acquires an interest in literary or media rights to a portrayal or account based in substantial part on information relating to the employment.
Payment of Fees • ABA Defense Standards 4 -3. 5 (e) In accepting payment of fees by one person for the defense of another, counsel should remember that his “entire loyalty is due to the accused”. . . Defense counsel should not permit such person to “direct or regulate counsel’s professional judgment in rendering such legal services. ”
The Brady Rule • Brady v. Maryland 373 U. S. 83 (1963) “The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. ”
The Brady Rule • Evidence must be favorable to the • • accused; The evidence must be possessed by the prosecution team; AND The evidence must be material.
Special Responsibilities • I. R. P. C. 3. 8 (c) A prosecutor shall make timely disclosure of the existence of evidence, known to the prosecutor, that tends to negate the guilt of the accused or mitigate the degree of the offense.
Victim’s Rights • Remember: The rights of the victim to confer with the prosecuting attorney, be informed of the procedural steps in the case and to be advised of plea offers made, does not include the authority to direct the prosecution of the case.
Pretrial Publicity • ABA Defense Standard 4 -1. 4 Defense counsel should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if defense counsel knows, or should know, it will have a substantial likelihood of prejudicing a criminal proceeding.
Pretrial Publicity • I. R. P. C. Rule 3. 6 (a) A lawyer participating in the investigation or litigation of a matter “shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” if the lawyer knows or reasonably should know it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Pretrial Publicity • I. R. P. C. 3. 6 (d). . . A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyers client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
Pretrial Publicity • Ben turned himself in. . . baseless charges • Entered not guilty plea. . . • I am here to declare and assure the public that he is innocent of all charges. • Ben was eagle scout, tight end, alter boy • Accused by known liars, Sam and snitch • Det. Owens physically abused his wife
Pretrial Publicity • Full support of his family, wants to marry Karla • Passed polygraph with flying colors • $1000 reward for information leading to the arrest of the real killer • Public should be aware that the real killer is still at large and none of us are safe.
Exploring a Plea • ABA Defense Standard 4 -6. 1 (b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed. . .
Advising the Accused • ABA Defense Standard 4 -5. 1 (a) After informing herself fully on the facts and the law, defense counsel should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.
Advising the Accused • ABA Defense Standard 4 -5. 1 (b) Defense counsel should not intentionally understate or overstate the risks, hazards, or prospects of the case to exert undue influence on the decision of the accused as to his plea.
Plea Negotiation • Offer + Acceptance = Contract • If you make an offer put it in writing! • Santobello v. New York 404 U. S. 257(1971): When a plea “rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. ”
Plea Negotiations • Mabry v. Johnson 467 U. S. 504 (1984): The Court refused to set aside a defendant’s guilty plea (to consecutive time) and require enforcement of an “executory agreement” when the deputy prosecutor had made the offer (to concurrent time) by “mistake” and withdrew the offer after the defense attorney called to accept it. The final guilty plea was knowing and voluntary when made.
Confidentiality • I. R. P. C. 1. 6 (a) Except as provided in 1. 6(b) or 1. 6(c), “a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure. ”
Confidentiality • I. R. P. C. 1. 6 (b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm;
Confidentiality • ABA Defense Standard 4 -3. 7 (d). . . Except that defense counsel may reveal such information to the extent he or she reasonably believes necessary to prevent the client from committing a criminal act that defense counsel believes is likely to result in imminent death or substantial bodily harm.
Confidentiality • Model Rule 1. 6 Commentary (6). . . Paragraph (b)(1) recognizes the overriding value of life and physical integrity. . . Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if a lawyer fails to take action necessary. . .
The No Contact Rule • I. R. P. C. 4. 2 “. . . a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter” unless the lawyer has the consent of the other lawyer or is authorized by law.
Defendant Reinitiates Conversation • Can the police talk to the defendant? • Arguably yes. Edwards v. Arizona 451 U. S. 477(1981) Can you give the police permission to go talk to the represented defendant?
The No Contact Rule • I. R. P. C. 4. 2 “. . . a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter” unless the lawyer has the consent of the other lawyer or is authorized by law.
Physical Evidence • ABA Defense Standard 4 -4. 6 (a) Defense counsel who receives a physical item under circumstances implicating a client in criminal conduct should disclose the location of or should deliver that item to law enforcement only: (1) if required by law or court order, or (2) as provided in (d).
Physical Evidence • ABA Defense Standard 4 -4. 6 (d) If the item received is contraband (drugs, etc. ) counsel may suggest destruction when there is no pending case or investigation and when destruction is clearly not in violation of a statute. If destruction is not permitted by law or if counsel cannot retain the item, defense counsel should disclose the location or deliver the item to law enforcement.
Fairness to Opposing Counsel • I. R. P. C. 3. 4 “A lawyer shall not: (a) Unlawfully obstruct another party’s access to evidence or unlawfully alter destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. ”
Physical Evidence • ABA Defense Standard 4 -4. 6 (e) If defense counsel discloses the location of or delivers the item to law enforcement. . . She should do so in the way best designed to protect the client’s interests.
Physical Evidence • ABA Defense Standard 4 -4. 6 (b) Unless required to disclose, counsel should return the item to the source. In so doing, defense counsel should advise the source of the legal consequences of retaining or destroying the item. Counsel should prepare a written record for her file, but not give a copy to the source.
Conflicts of Interests • ABA Defense Standard 4 -3. 5 (c). . . The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one of several codefendants except when it is clear that no conflict is likely to deve 3 lop at trial, sentencing, or at any other time in the proceeding. . .
Conflicts of Interest • ABA Defense Standard 4 -3. 5 (c) (i) The several defendants must give informed consent; and (ii) The consent is made on the record. The trial should make “appropriate inquiries respecting actual or potential conflicts of interest of counsel” and whether defendants fully comprehend the difficulties for counsel to represent multiple clients.
The No Contact Rule • I. R. P. C. 4. 2 “. . . a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter” unless the lawyer has the consent of the other lawyer or is authorized by law.
Withdrawal of Counsel • I. R. P. C. 1. 16 With permission of the court a lawyer may withdraw from representing a client if: (4) the lawyer reasonably believes that a tribunal will, in a proceeding pending before the tribunal, find the existence of other good cause for withdrawal.
The Brady Rule • Evidence must be favorable to the • • accused; The evidence must be possessed by the prosecution team; AND The evidence must be material.
Material • United States v. Agurs 427 U. S. 97 (1976): “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense. . . if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. ”
Ex Parte Communication • I. R. P. C. 3. 5 (i) “. . . a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending. . . ”
Ex Parte Communication • I. R. P. C. 8. 4(a) A lawyer shall not: (7) assist a judge in conduct that the lawyer knows is a violation of the Code of Judicial Conduct.
Witness Interviews • Interview prior to trial? • Advise witness not to meet with the • • opposing lawyer? Advise witness regarding the law of perjury? Advise witness to not appear at the trial?
Fairness to Opposing Counsel • I. R. P. C. 3. 4 “(a) A lawyer shall not: (1) Unlawfully obstruct another party’s access to evidence. . . A lawyer shall not counsel or assist another person to do any such act; ”
Conduct Before a Tribunal • I. R. P. C. 3. 3 (a) A lawyer shall not: (14) advise or cause a person to become unavailable as a witness by leaving the jurisdiction or making secret their whereabouts within the jurisdiction;
Fairness to Opposing Counsel • I. R. P. C. 3. 4 (a) A lawyer shall not: (2) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
Witness Preparation • Explanation of the issues raised in • • • defense motion. Explanation of law based on facts. Anticipation of defense cross examination. Witness recollection differs from lawyer.
Candor Toward the Tribunal • I. R. P. C. 3. 3(a) “A lawyer shall not knowingly: (4) Offer evidence that the lawyer knows to be false. . . ”
Candor Toward the Tribunal • I. R. P. C. 3. 3 (a) A lawyer shall not: (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
Candor Toward Tribunal • ABA Defense Standard 4 -1. 2(g) Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the accused and not disclosed by the prosecutor.
The Brady Rule • Evidence must be favorable to the • • accused; The evidence must be possessed by the prosecution team; AND The evidence must be material.
Duty to Investigate • National Prosecution Standards 39. 1 • • Recognizes the need for investigators within the prosecutor’s office to fulfill the “duty to investigate. ” Do we have to investigate for the defense? Who decides if the information is “material”?
Material • United States v. Agurs 427 U. S. 97 (1976): “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense. . . if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. ”
Fairness at Trial • ABA Defense Standard 4 -7. 5 (b) Defense counsel should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence or ask legally objectionable questions.
Fairness at Trial • Model Rule 3. 4 A lawyer shall not: (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. . .
The Brady Rule • Evidence must be favorable to the • • accused; The evidence must be possessed by the prosecution team; AND The evidence must be material.
Exculpatory Information • Giglio v. United States, 405 U. S. 150(1972): When the reliability of a witness may well determine guilt or innocence, nondisclosure of evidence affecting credibility falls within the “Brady” rule. See also U. S. v. Bagley, 473 U. S. 667 (1985).
Lost Evidence • Arizona v. Youngblood 488 U. S. 51(1988): Unlike in Brady/Agurs test for clearly exculpatory and material evidence, in cases where evidence is discarded or destroyed, the good/bad faith of the government is entirely relevant, and the accused must show bad faith or ill motive underlying the destruction.
Fairness to Opposing Counsel • I. R. P. C. 3. 4 “(a) A lawyer shall not: (1) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. ”
The Brady Rule • Evidence must be favorable to the • • accused; The evidence must be possessed by the prosecution team; AND The evidence must be material.
Exculpatory Information • Giglio v. United States, 405 U. S. 150(1972) When the reliability of a witness may well determine guilt or innocence, nondisclosure of evidence affecting credibility falls within the “Brady” rule. See also U. S. v. Bagley, 473 U. S. 667 (1985).
Brady Information? • What do we do with this situation? • Happens often in child sexual abuse or • other child witness cases. How different is “favorable” or “material” for Brady purposes?
Candor Toward the Tribunal • I. R. P. C. 3. 3 (a) A lawyer shall not: (4) “Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. ”
Disclosure of Lie • Napue v. Illinois 360 U. S. 264 (1959) “A lie is a lie, no matter what its subject. . . ” If in any way relevant, “the D. A. has the responsibility and duty to correct what he knows to be false and elicit the truth. . . ” Citing People v. Savvides 136 N. E. 2 d 853.
Lawyer as Witness • always, • Always, ALWAYS!!! have somebody with you when meeting with any witness or potential witness in your case! I. R. P. C. 3. 7 “(a) A lawyer shall not act or continue employment. . . if the lawyer knows or reasonably should know that the lawyer may be called as a witness. . .
Closing Argument • National Prosecution Standards 85. 1: “Closing arguments should be characterized by fairness, accuracy, rationality, and a reliance upon the evidence or reasonable inferences drawn therefrom. ”
Bad Closings • Use of facts not in evidence • Right to remain silent • Calling the defendant names • Calling jurors by name • Expressing personal opinion • Biblical references
Bad Closings • Message to the community • Improper use of exhibits • Request for an attorney • Appeals to home town favoritism • Consequences of acquittal • Appeals to sympathy
Bad Closings • Comments on objections • Defining reasonable doubt • Prayers of guidance • Reference to excluded evidence • Facts not in evidence
“One of the finest offices the public can give to a member of the legal profession in this state is that of Commonwealth’s Attorney. Its very status becomes a mantle of power and respect to the wearer. . . No one except the judge himself is under a stricter obligation to see that every defendant receives a fair trial. . . ” Niemeyer v. Commonwealth, 533 S. W. 2 d 218, 222 (Ky. 1976).
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