Ethics Exam #3- Chapter 8,9,10

Importance of Law

our laws serve as the written embodiment of society’s ethics and morals

What is law?

formal, written rules of society

Natural Law

• one of the three types of law

Belief that some law is inherent in the natural world

Positivist Law

• 2nd of the three types of law

Human-made law. Because it is human made, by its nature its “fallible”

Good Samaritan Laws

• 3rd of the three types of law

Common in Europe. Makes it a crime not to stop and assist

Social Contract Theory

under this theory, we all give up some liberties to be protected from others

Four “justifications” for law

1. Preventing harm to others

2. Preventing Offensive Behavior

3. Preventing harm to self (Legal Paternalism)

4. Preventing Harm to societal morals (legal moralism)

1st Justification of law

Preventing harm to others: idea that laws should only restrict those actions that can or do cause harm to others

2nsJustification of law

Preventing Offensive Behavior: some actions do not harm others but can be offensive

3rd Justification of law

Preventing Harm to Self (legal paternalism): laws to protect people from their own behavior

4th Justification of law

Preventing harm to societal Morals (Legal Moralism): justification for law that allows for protection and enforcement of societal morals

Limited Legal Moralism

view that only actions that violate a “universal standard” should be criminalized

Paradigms of Law

Idea is that we can better understand the law’s function if we understand views of the world around us

Conflict Paradigm

Groups in society have fundamental differences and those in power control the law

• Law is repressive: oppresses poor and powerless

• Law is a tool of the powerful: write laws to promote their economic interests

• Law is not value-neutral: law is biased

Pluralist Paradigm

Many groups in society that form allegiances and coalitions in a dynamic exchange of power

• law is dynamic and changes reflect shifting conditions

Consensus Paradigm

most people have similar beliefs, values, and goals and societal laws reflect that view

• Law is representative: dos and don’t we agree on

• Law enforces social cohesion: points out deviance

  • Law is value-neutral: resolves conflicts in an objective and neutral manner

Courtroom “Workgroups”

Text mentions that the actual outcomes in the court process is not always the “by the book” scenario

• 90% end up in a plea agreement

• Accurate description is that the parties form a “courthouse workgroup”- participate collaboratively (not always cordially)

Bureaucratic Justice

each case is treated as one of many, actors follow the rules and walk through the steps

How many cases are filed in state trial courts each year

100 million

Wedding Cake Model of justice

Largest # of criminal cases form the bottom of the cake- supposedly these get less due process

A few “serious” cases form the top layer and get more attention and more resources

Gideon v. Wainwright (1963)

SCOTUS ruled that indigent defendants must be represented; about 80% today

How has spending decreased as cases rise?

Spending has decreased 2% while cases have risen 40%

Indigent Defendants

Some believe that due to underfunding and high caseloads, that representation may fall below the constitutional requirements

Study on Indigent Defendants

A caseload should only be 150 felonies a year, but some public defenders carry 2x that number

What do studies vary on the effectiveness of public defenders

• some say private attorneys give “better” representation

• Some say public defenders get “better” results

Model Rules of Professional Conduct

guiding document for the ABA

• The original version was adopted by the ABA in 1908

• 49 states have adopted these or parts to guide and discipline attorneys in their state

When was the American Bar Association formed?

The ABA was formed in 1878

Section 1 of the Model Rules of Professional Conduct

Client-lawyer relationship

• Must be competent, confidential, have due diligence ,decision-making

Section 3.8 of the Model Rules of Professional Conduct

Prosecutorial Conduct

• Added in 2008 due to increase in exonerations- must do something if they think this occurred

• in 2017, 17 states had adopted part or all of that rule

According to the text, what are some ways prosecutors can get exemptions in the Code on rules other attorneys must follow?

• can “induce” a witness- pay informants or reduce sentences

• Communicate without their lawyer present

  • No Deceit: undercover operations or interrogations

American Law Institute’s Reinstatement of the Law Governing Lawyers

provides ethical guidance

• ABA promotes this, but state ABAs must adopt them for it to have an effect on attorneys

ABA Criminal Justice Standards

relate specifically to practice of criminal law

Ethical issues

courtroom behavior

perjury

conflicts of interest

use of media

discovery/sharing of evidence

ABA’s Model Code of Judicial Conduct

4 canons, overriding principles of ethical behavior

How are judges elected?

8 states use partisan selections

14 states use non-partisan selections

19 states use a form of appointment/selection

9 states use a mix of elections/appointment

Legal Agent

an attorney is just that for their client

• lawyer is neither moral or immoral, just a legal tool

Special Relationship

more moderate position

• like between mother and child

• try to convince the client against an unethical decision, but loyalty keeps them from going against them

Moral Agent

Lawyer must adhere to their own moral code

• clients interests would come 1st only when they dont conflict with morals and ethical code

Principle of Partisanship

Due to the adversarial system, in some cases, lawyers may do things they have moral qualms about

• Their role becomes one of giving citizens access to vigorous representation

• This system puts a clients’ interests above all others

Lawyer-Client Relationship

ABA says that the lawyer can withdraw if the client insists on pursuing an avenue the lawyer considers repugnant or imprudent

Faretta v. CA (1975)

SCOTUS said even in a serious case, clients can’t be forced to be represented

Model Rule 2.1

encourages lawyers to look at ethical systems to resolve problems

How many indigent defendants are represented by government funded defense counsel

80%

Motivated Reasoning

concept that they have to “triage” those many cases and put the most effort into the “winnable” ones

Defense Attorney

job is to ensure that all clients get due process

to offer a “zealous defense”, even though many are guilty of the crime (90% plead guilty)

Responsibility to the client

must balance the needs and problems of the client against their ethical responsibilities to the system and the profession

What are some reason a defense attorney can withdraw once they take a case?

• the legal action is for harassment or malicious purposes

• continued employment will result in violation of a disciplinary rule

• discharged by the client

• mental or physical ailment renders effective counsel impossible

• judges may grant this when the client insists on illegal or unethical actions, uncooperative and will not follow advice- makes effective counsel difficult

Defense Lawyers ABA rule

to act with reasonable diligence and promptness

• to use zeal, commitment, and dedication

• they are the agents of their clients and must serve them loyally and effectively

Zealous Defense

should act zealously within the bounds of the law

Ethical standards and rules of a zealous defense prohibit

• actions to intentionally and maliciously harm others

• knowingly advance unwarranted claims/defenses

• conceal or fail to disclose that the law requires

• knowingly use perjured testimony or false evidence

• knowingly make a false statement of law or fact

  • counsel the client in conduct that is illegal

Attorney-client privilege

inability of authorities to compel an attorney to disclose confidential information regarding their client

• if they breach this, could possibly be disbarred

Model Rule 1.6 allows disclosure:

• when the client consents

• required by law or court order

• prevent reasonably certain death or substantial bodily harm

• to prevent the client from committing a crime or fraud

ABA Model Code on Confidentiality (before the rules)

allowed disclosure to prevent ANY crime

• Many state associations did not adopt this

• The current version requires disclosure of financial crime if there is substantial injury

What do the rules of confidentiality not apply to?

Physical evidence

Model Rule 3.3

forbids the lawyer from allowing perjury to take place; if it happens before the lawyer knows, they must not use that testimony

• A lawyer can withdraw if the client insists on doing it

Berger v. US (1935)

For prosecutors, the law is that winning is not everything; the primary duty of a prosecutor is to see justice is done

• must assist the court in arriving at the truth fairly

Use of prosecutorial Discretion

disciplinary rules for prosecutors are more “robust”

• cannot pursue charges without probable cause; they have no duty to prosecute

Some factors of prosecutorial discretion

• strength of the case

• Doubt that the accused is guilty

• extent or absence of harm caused by the offense

• impact of prosecution on public welfare

• background and characteristics of the offender

• improper conduct by law enforcement

Giglio or Brady List

officers with credibility issues that must be turned over to the defense

Brady material

can be any item of evidence that could affect the jury’s decision

Plea Bargaining

• serious ethical concerns

• In places with determinate sentencing, clients cannot ask the judge for reduced sentences but can instead plead reduced charges

• should not mislead defense attorneys with the amount of credible evidence they possess

Trial Penalty

prosecutor can ask for longer sentences for those who go to trial

Rule 3.6b

prohibition against making out of court statements that could materially prejudice a proceeding

No statement regarding: character, credibility, reputation, or criminal record of:

• party

• suspect

• witness

Expert witnesses

Brought in by prosecutors in many areas

Double Standard

judge determines to admit that testimony if expert is reliable and applied to facts at hands

Jailhouse Informants

in jail for an unrelated crime and the defendant confesses or incriminates themselves to them

• prosecutor then rewards them for that testimony

How many judges are there and how many cases do they see annually?

1700 federal judges- 400,000 cases annually

30,000other judges with 100 million new cases annually

Recusal

excuse themselves from the case when disability, bias, or relationships to parties might influence them

Rule 2.2

a judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially

Exclusionary rule

if a conviction occurs due to tainted evidence, that would be unjust

• also need to hold police/prosecutors accountable

Major complaint of defense ethical issues

Defense don’t communicate regularly with clients

Strickland Test

• performance fell below “objective standard of reasonableness

• reasonable probability, but for counsel’s unprofessional errors, the result would have been differen

Study on 1000s of cases of prosecutorial misconduct

said there were hundreds of prosecutorial misconduct

• only 20% of misconduct findings resulted in a case being overturned

What are the four types of prosecutor misconduct?

• withholding exculpatory evidence (Brady violation)

• misusing pretrial publicity

• using false evidence in court

• using peremptory challenges to exclude jurors because of race

Batson v. Kentucky

prohibits race discrimination in jury selection

• must be legal reason for exclusion

Model Rule 3.3a

• forbids an attorney from “knowingly” allowing false evidence to be admitted into court

Nationwide study done by the Center of Public integrity

among all 11,452 documented appeals alleging some type of prosecutorial misconduct between 1970 and 2002

• 2,012 appeals led to reversals or remanded indictments, indicating harmful error (17.6%)

What percent of misconduct allegations involved Brady Violations by the prosecutors?

41%