Developing Standards of Conduct for Prosecutors and Criminal Defense Lawyers

Bruce A. Green

Volume 62, Issue 5, 1093-1110

This issue and a companion issue of the Hastings Constitutional Law Quarterly together collect sixteen papers on the professional conduct of prosecutors and criminal defense lawyers. Typically, normative scholarship on lawyers’ professional conduct focuses on what the ethics rules and other laws require, or should require, of lawyers.

These pieces are different, because their principal focus is not on whether lawyers’ conduct is minimally ethical or lawful, but on how lawyers should practice within the bounds of the ethics rules and other law. That is because the authors were asked to take unenforceable professional standards, the ABA Criminal Justice Standards for Prosecution and Defense Functions, as their point of departure

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The ABA’s Project to Revise the Criminal Justice Standards for the Prosecution and Defense Functions

Rory K. Little

Volume 62, Issue 5, 1111-1158

In late 2005, I was asked by the ABA Criminal Justice Standards Committee whether I would serve as ‘Reporter’ to a Task Force that was being formed to consider revisions to the Criminal Justice Standards for Prosecution and Defense Functions. The call did not come out of the blue; I had previously worked with the ABA in various capacities. In the mid-1990s, I had served as a member of the ABA’s Standing Committee on Professional Responsibility. In 1999, I published an article bemoaning the lack of specific guidance in the ABA Criminal Justice Standards for prosecutors acting in an investigative role. That article led to my membership on a Task Force, which ultimately promulgated draft standards addressing ‘Prosecutorial Investigations,’ finally adopted by the ABA in 2008.

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The Role of the Prosecution and Defense Function Standards: Stagnant or Progressive?

Ellen S. Podgor

Volume 62, Issue 5, 1159-1176

This Essay examines the role of the ABA Criminal Justice Standards: The Prosecution and Defense Function Standards, looking at language when initially drafted to language being considered in the proposed fourth edition. It focuses on the preliminary sections of the Standards that outline the intended role of the Standards and considers how courts have used these Standards in court decisions. It also notes how the Standards serve a hortatory role, providing internal guidance to prosecutors and defense counsel. An overriding question is whether these Standards serve a legitimate function in the criminal justice process?

Placing the question of the role of the Standards in a specific context, this Essay examines the drafters’ approach to jury selection and specifically to peremptory strikes based on sexual orientation. The drafters’ failure to explicitly include “sexual orientation” as an impermissible category for peremptory strikes of jurors, leaves the Standards merely endorsing existing constitutional criteria, which raises the question of whether the Standards have any purpose. This Essay advocates against the approach taken by the drafters, as it offers little advancement in the law and perpetuates existing bias. As hortatory standards, it is unnecessary to limit the rules to existing law. More importantly, by failing to expand the category of impermissible peremptory challenges, it is a missed opportunity to offer progressive legal reform.

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The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance?

Rodney J. Upholf

Volume 62, Issue 5, 1177-1226

Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice Standards for Prosecution and Defense Functions?

This Article explores three scenarios that present variations of the physical evidence conundrum and explores the extent to which existing authority provides clear guidance when lawyers find themselves wrestling with a physical evidence quandary. The Article concludes that Standard 4-4.6’s more nuanced return-to-the-source rule strikes a better balance between defense counsel’s duty as an officer of the court and her duties as a zealous advocate than the mandatory turnover rule championed by most courts and by section 119 of Restatement (Third) of the Laws Governing Lawyers. Finally, the Article urges those revising Standard 4-4.6 to retain its basic approach, but to address some of the weaknesses of the Standard.

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Quieting Cognitive Bias with Standards for Witness Communications

Melanie D. Wilson

Volume 62, Issue 5, 1227-1258

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section’s undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental impact of those biases. Then, the Article examines in detail three challenging, yet common aspects of communications that the Standards seek to influence: (1) communicating with witnesses about their future communications with opposing counsel, (2) communicating warnings to witnesses, and (3) communicating with experts. Ultimately, the Article argues for clarity in the Standards to reduce the impact of unwanted cognitive bias to which we are all vulnerable.

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Prosecutorial Decisionmaking and Discretion in the Charging Function

Bennett L. Gershman

Volume 62, Issue 5, 1259-1284

A prosecutor’s charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA’s Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting a prosecutor’s charging decision. Nonetheless, it is unclear whether these Standards purport to establish ethical guidelines for prosecution, or merely guidelines for a prosecutor’s exercise of judgment and policy in the charging function. This Article assesses the extent to which the proposed Standards cover several charging issues effectively, inadequately, or at all. Specifically, this Article focuses on (1) the retention and modification of the probable cause standard for filing charges; (2) the differing Standards for filing and maintaining charges; (3) the role of innocence in the charging decision; (4) discretionary factors in the charging decision; (5) improper considerations in the charging decision; (6) the role of race and community pressure; (7) the issue of filing multiple charges—so-called “overcharging”—and (8) the Standard for actions premised on a defendant’s agreement not to sue.

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The Incautious Media, Free Speech, and the Unfair Trial: Why Prosecutors Need More Realistic Guidance in Dealing with the Press

Andrew E. Taslitz

Volume 62, Issue 5, 1285-1320

The ABA has proposed a new Standard for the Prosecution Function, Standard 3-1.7, which addresses how prosecutors should communicate with the media. The core portion of that proposal prohibits a prosecutor from making a statement raising a substantial risk of materially prejudicing a criminal proceeding or of unnecessarily heightening public condemnation of the accused. But this proposal is unrealistic. Recent findings in cognitive science suggest that media information overload and its fast pace result in media coverage of high-profile trials that heightens audience’s negative emotions while compromising their critical faculties. Audience members thus are enraged at accused offenders and ill-equipped to judge the accuracy and completeness of media crime stories. All media in such cases therefore raise the substantial risks that the proposal prohibits. On the other hand, prosecutors’ commentary to the press serves important free speech and political purposes, which this Article details. This Article weighs this balance to come up with an alternative series of guiding ethical principles, including, centrally, the principle that the prosecutor’s statements shall not aggravate the unavoidable risks posed to trial fairness. The remaining principles detail how to give this nonaggravation rule greater specificity in channeling prosecutors’ ethical decisionmaking in communicating with the media.

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Prosecutorial Disclosure Obligations

Ellen Yaroshevsky

Volume 62, Issue 5, 1321-1348

Prosecutorial disclosure of information to the defense has long been recognized as essential to a fair criminal justice system and yet, the required disclosure is ill defined and the subject of ongoing contention. Prosecutor’s obligations are informed by various sources including state and federal constitutional provisions, statutes, court rules and state ethics rules. The ABA Criminal Justice Standards, another source defining that obligation, can and have served as guidance for judges, prosecutors and defense lawyers, notably in areas of ambiguity. Those Standards were recently revised to provide greater clarity as to the scope of what information should be provided to the defense and the timing of the disclosure duty. This Article explores the changes made by the revisions as well as areas—such as e-discovery—that were not included.

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Investigative Deceit

Ben Kempinent

Volume 62, Issue 5, 1349-1376

Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol or substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This Essay suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel plays in communities with problem-solving courts the promise of this approach for appropriate offenders can be realized without compromising the core duties that counsel owes her client. The template proposed here for reconciling these conflicting interests is based in large part on the work and experiences of shareholders in Wisconsin problem-solving courts. It is further suggested that the proposed ABA Criminal Justice Standards for the Defense Function fail to address most, if not all, of the unique defense function issues presented by the problem-solving court model.

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Note – Judge Nullification: A Perception of Unpublished Opinions

Rafi Moghadam

Volume 62, Issue 5, 1397-1440

Back in 1974, the California Supreme Court took the ground-breaking step of creating an appellate rule that barred citation to unpublished opinions. The “no-citation rule” was designed to facilitate legal research by limiting the universe of citable cases. Over time, however, the rule has proven to be a mechanism for questionable discrimination against unpublished decisions. Unpublished appellate opinions are restricted supposedly based on characteristics shared by them—chiefly, unoriginal content—when in fact these cases often exhibit vibrant legal discourse. This Note reviews the no-citation rule from the ground up. The analysis begins with a comprehensive background, proceeds to test the legal basis for the no-citation rule, challenges misconceptions about the utility of unpublished decisions, and discusses changes in the circumstances upon which the no-citation rule was founded. Segregation of cases based on publication status, the analysis shows, is an unconstitutional practice that potentially casts the judiciary in bad light. The practice is at odds with the state’s judicial notice statute and the judiciary’s ethical obligation to maintain an appearance of fairness. Bringing an end to the no-citation rule, which enables discrimination against unpublished opinions, thus, is legally justified and ethically required.

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