Ethics, Bias and Other Challenges

Kenneth E. MelsonProfessorial Lecturer in Law

The George Washington University

https://www.google.com/search?q=ethics+definition&rlz=1C1SFXN_enUS499US499&source=lnms&tbm=isch&sa=X&ved=0ahUKEwiumtm-rqfcAhVHGt8KHbqgDCgQ_AUICygC&biw=1523&bih=758#imgrc=OUkkYV3-Y7IiZM:

COMMUNICATION IS THE KEY TO TEACHING

TEACHING THE PARAMETERS OF MORALITY AND CONDUCT

Students must be engaged in the thought process of the course.

• Obtain from the students their perception of ethics and biases.

• Recognize the difference between ethics and professional conduct to gain a broader sense of right and wrong within the criminal justice process.

FOR PURPOSES OF DISCUSSION HERE

Ethics are the moral principles that govern a person’s behavior or how an activity is conducted.

Professional Responsibility is the legal, regulatory, and moral responsibility to apply one’s talent and knowledge in his or her profession in a way that benefits the client and society without causing any damage to either.

ESTABLISH RESPONSIBILITIES OF THE PARTICIPANTS

Where we stand on issues often reflects where we sit.

Cognitive biases affect every individual’s judgment.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88 (1935)

The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity. ABA Criminal Justice Standards for the Defense Function, Standard 4-1.2

PROSECUTOR’S RESPONSIBILITY

DEFENSE COUNSEL’S RESPONSIBILITY

Problems in Berger v. U.S.Applicable to All Counsel

misstating the facts in his cross-examination of witnesses

putting into the mouths of such witnesses things which they had not said

suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered

HE WAS GUILTY OF:

Problems in Berger v. U.S.Applicable to All Counsel

pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis

assuming facts not in evidence

bullying and arguing with witnesses

conducting himself in a thoroughly indecorous and improper manner

SO WHAT DOES JUSTICE MEAN TO YOU?

• that guilt shall not escape

• strike hard blows by either side

• no innocent shall suffer

• to use any means necessary to acquit

• to refrain from improper methods calculated to produce a wrongful conviction

• to use every legitimate means to bring about a just verdict

• play by the rules

• not get caughtFandangoNOW

Carol

DISCUSS VARIOUS APPROACHES TO ETHICAL ISSUES

Are there approaches that satisfy professional conduct requirements but protect equities of a case?

How broad is one’s responsibility and can you cast a blind eye?

Who should determine what material to turn over to the defense?

Should you have open file discovery, liberal discovery or by the book discovery?

Can you, or should you, submit an ex parte submission to the court to determine any exculpatory nature of certain material?

Do you use protective orders?

Should you turn over everything to avoid Brady allegations?

• Should you have open file discovery, liberal discovery or by the book discovery?

• Can you, or should you, submit an ex parte submission to the court to determine any exculpatory nature of certain material?

• Do you use protective orders?

• Should you just turn everything over to avoid Brady allegations?

Prosecution Team Concept

Kyles v. Whitley, 514 U.S. 419, 437 (1995)

The individual prosecutor has a duty tolearn of any favorable evidence knownto the others acting on the government’sbehalf in the case, including the police.

In re Brown, 952 P.2d 715 (Cal S.Ct. 1998)

Crime lab’s failure to apprise prosecution of test result did not relieve prosecution ofits responsibility when defendant did notreceive copy of crime lab’s RIA test results.

DISCUSS ACTUAL CASES TO ILLUSTRATE ETHICAL ISSUES

What are examples of ethical issues regarding an attorney’s investigation, preparation and litigation of a criminal case?

Expert Witness Shopping

Buckley v. Fitzimmons

509 U.S. 259 (1993)

Misrepresentation of forensic facts in closing argument

People v. Wright, 37 N.E.3d 1127 (2015)

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Also see, e.g., Whack v. State, 73 A.3d 186 (Md. App. 2013) and People v. Linscott, 566 N.E.2d 1355 (Ill. 1991).

2

Giglio Impeachment Information

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We all have them!

But what do we do about them?

The Tale of Mr. Struck (pseudonym)

Text messages among members of the prosecution team can create an appearance of bias in the investigation and prosecution.

This defendant is a scum ball. She has

to go down.

“Texts mean what they say and say what they mean.” Rep. Darrel Issa, 7/16/18

Standard 3-1.6 Improper Bias Prohibited(a) . . . A prosecutor should strive to eliminate implicit

biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor’s authority. ABA Criminal Justice Standard for the

Prosecution Function.

New Orleans U.S. attorney resigns amid scandal over anonymous online postings

Washington Post by Sari Horwitz December 6, 2012

The two prosecutors, former first assistant U.S. attorney Jan Mann and former assistant U.S. attorney Sal Perricone, acknowledged using aliases to post comments on the Web site of the Times-Picayune newspaper. The comments were highly critical of Fred Heebe, the owner of a local landfill that was under federal investigation, according to court papers. Perricone, a member of Letten’s inner circle, resigned, and Mann was demoted.

New Orleans Assistant DA fears retaliation

Standard 3-1.5 Duty to Respond to Misconduct

(a) the prosecutor should follow the policies of the prosecutor's office concerning such matters, then

(b) if such policies are unavailing or do not exist, the prosecutor should ask the person to reconsider, then

(c) the prosecutor should refer the matter to higher authority in the prosecutor's office, then

(b) further remedial action, including revealing the information necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.

DISCUSS WHY ETHICS AND PR ARE IMPORTANT TO THE AUDIENCE

What are the consequences of being found in violation of the code of professional responsibility?

WHAT YOU CAN LOSE

• YOUR CASE

• YOUR REPUTATION

• YOUR LICENSE

• YOUR JOB

Suspension of your license to practice

3 HOTS AND A COT

PRESENT SCENARIOS FOR DISCUSSION

Have the audience apply what they have learned and to share it with others.

Scenario One

Your office has engaged a prominent private laboratory that has developed a new technique to obtain DNA from fired shell casings. This technique has not been used by your state laboratory or by the ATF or FBI. The results of the tests show that the defendant’s known DNA profile has 17 of 20 core loci in common with the questioned DNA profile.

Do you have any responsibilities before using this laboratory to present this evidence in your case?

ABA Criminal Justice Standards for the Prosecution Function, Standard 3-3.5, Relationship with Expert Witnesses:

• (b) A prosecutor should evaluate all expert advice, opinions, or testimony independently, and not simply accept the opinion of a government or other expert based on employer, affiliation or prominence alone.

• (c) Before engaging an expert, the prosecutor should investigate the expert’s credentials, relevant professional experience, and reputation in the field. The prosecutor should also examine a testifying expert’s background and credentials for potential impeachment issues. Before offering an expert as a witness, the prosecutor should investigate the scientific acceptance of the particular theory, method, or conclusions about which the expert would testify.

See Defense Function, Standard 4-4.4 Relations with Expert Witnesses

Scenario Two

Your state laboratory just hired an experienced expert from another laboratory in a different region of the country. She is going to testify as a new employee for the first time in your case.

1. What should you do to prepare for qualifying her as an expert witness?

2. If you find that she had an allegation of an ethics violation at her old job, but there was no finding as to its validity, should that be disclosed to the defense?

https://www.bhubaneswarbuzz.com/citizen-bloggers/a-nice-discussion-on-tendency-of-many-odias-to-talk-in-hindi-or-english-these-days

ABA Criminal Justice Standards for the Prosecution Function, Standard 3-3.5, Relationship with Expert Witnesses:

(c) Before engaging an expert, the prosecutor should investigate the expert’s credentials, relevant professional experience, and reputation in the field. The prosecutor should also examine a testifying expert’s background and credentials for potential impeachment issues. Before offering an expert as a witness, the prosecutor should investigate the scientific acceptance of the particular theory, method, or conclusions about which the expert would testify.

See Defense Function, Standard 4-4.4 Relation with Expert Witnesses

Scenario Three

A handwriting analysis expert has examined a crucial ransom note in your case. She concludes that there are indications (evidence to suggest) that the defendant wrote the document. The next higher level in the 9 point scale of conclusions is that the defendant probably wrote the document. The differences in the two conclusions is somewhat subjective on the part of the expert.

1. How hard should you press the expert to upgrade her conclusion?

2. Would it help to show the examiner the defendant’s past record and explain that the defendant kidnapped a small child who was found dead and decomposed in the woods?

ABA Criminal Justice Standards for the Prosecution Function, Standard 3-3.5, Relationship with Expert Witnesses:

(d) A prosecutor who engages an expert to provide a testimonial opinion should respect the independence of the expert and should not seek to dictate the substance of the expert’s opinion on the relevant subject.

g) The prosecutor should provide the expert with all information reasonably necessary to support a full and fair opinion.

See Defense Function, Standard 4-4.4 Relations with Expert Witnesses

Scenario Four

You are preparing your expert witness for trial and discuss with her potential impeachment questions concerning the examination process that will likely be asked by defense counsel. She appreciates that effort and gives you her proposed answers to those questions, to which you approve and record in your notes.

1. Is it proper to suggest what impeachment questions could be asked?

2. If at trial, when those impeachment questions are asked of her, she gives an answer that varies substantively from what she told you in the pre-trial conference, what, if anything, should you do?

(a) The prosecutor should not offer evidence that the prosecutor does not reasonably believe to be true, whether by documents, tangible evidence, or the testimony of witnesses. When a prosecutor has reason to doubt the truth or accuracy of particular evidence, the prosecutor should take reasonable steps to determine that the evidence is reliable, or not present it.

c) During the trial, if the prosecutor discovers that false evidence or testimony has been introduced by the prosecution, the prosecutor should take reasonable remedial steps. If the witness is still on the stand, the prosecutor should attempt to correct the error through further examination. If the falsity remains uncorrected or is not discovered until the witness is off the stand, the prosecutor should notify the court and opposing counsel for determination of an appropriate remedy.

See Defense Function, Standard 4-4.1 Relations with Expert Witnesses. . . . . .The prosecutor’s notes of the expert’s answer during a pre-trial conference may be Jencks material.

ABA Criminal Justice Standards for the Prosecution Function, Standard 3-3.5, Relationship with Expert Witnesses:

I HOPE THAT BY USING THESE TEACHING TECHNIQUES (AND MATERIALS) YOU CAN INCREASE THE KNOWLEDGE AND COMMITMENT OF YOUR LAWYERS TO THE GOALS OF ETHICAL AND PROFESSIONAL CONDUCT.

THANK YOU!