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Chapter Nine: Ethical Issues for Criminal Prosecutors

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1 Chapter Nine: Ethical Issues for Criminal Prosecutors
Ethical Justice Chapter Nine: Ethical Issues for Criminal Prosecutors

2 Ethical Issues for Criminal Prosecutors
In collaboration with their law enforcement counterparts, criminal prosecutors are the most powerful and influential agents of the criminal justice system. They alone can decide the following: Whether to bring charges against criminal suspects before the court; Whether a case or particular evidence is presented to a grand jury; Who gets called as a credible witness and who gets charged as a co-defendants; Whether additional charges are added during trial; And, in the most publicized cases, who gets a plea deal and who faces the death penalty.

3 Criminal Prosecutors: Structure & Function
There are three primary types of criminal prosecutors: U.S. Attorneys – operate at the Federal level, working directly for the U.S. Attorney General, and representing the United State government. District Attorneys – elected officials that operate at the borough or county level to represent local government in the prosecution of criminal defendants. City (aka Municipal) Attorneys – elected or appointed officials, serving to represent and advise local governments (e.g., assemblies, boards, administrators, and department heads in villages, townships, and cities) in criminal prosecutions, civil disputes, and other legal matters. 3

4 Criminal Prosecutors: Structure & Function
The criminal prosecutor’s mission is straight forward – the just prosecution of criminal defendants. The ethical prosecutor’s mission is the search for truth in the pursuit of justice. This also means avoiding a conflict of interest, which occurs when a person or an agency has competing loyalties, or loyalties that are at odds, because of their need to satisfy multiple roles, duties, or obligations. 4

5 Ethical Issues with Law Enforcement
When a law enforcement agency refers a case for prosecution, there are three discretionary options available: Prosecute Decline prosecution Further investigation required 5

6 Ethical Issues with Law Enforcement
In order for the ethical prosecutor to exercise their discretion properly, and to assess the quality of the investigation that has been conducted, attention must be given to the following legal issues: Reading the case file; Overall investigative quality; Warrants and probable cause; Witness credibility; Officer credibility; and Credibility of forensic evidence and personnel. 6

7 Pretrial Ethical Issue
Prior to trial, there are myriad ways for an unethical prosecutor to manipulate the criminal justice system in order to achieve convictions without solid evidence or reliable witnesses. These ethical issues include the following: Almost unlimited funding; Abusing the Grand Jury; Overcharging criminal defendants; Plea deals and immunity; Witness harassment and intimidation; Brady violations; and Fabricating, falsifying and suppressing evidence. 7

8 Ethical Issue During Trial
Once a trial is underway, there are more professionals involved; each of them has their own ethical burden to bear; and most of them are accountable directly to the court, often under oath. In terms of ethical issues, the following exist: Problems that arise in court from the kinds of questions prosecutors can and cannot ask, what they can and cannot argue over, and evidence that they are not allowed to reference or elicit from witnesses; Subornation of perjury; and Improper closing arguments. 8

9 Post Conviction A criminal matter is not always settled by the reading of the jury’s verdict at the end of a trial. Upon conviction, some criminal matters enter the appellate phase, where the defense has the right to have their case reviewed for errors and impropriety that may have influenced judge or jury in their decisions. 9

10 Post Conviction Post conviction, prosecutors have an ethical, and sometimes legal, duty to preserve a copy of both the discovery material provided to the defense and any physical evidence that was collected. They must be open to the examination and testing of newly discovered evidence; have the character to reconsider findings and decisions in the light of any new evidence test results; and be willing to admit mistakes when they have been made. 10

11 Incentivized Misconduct
A lack of professional ethics and even professional misconduct can be incentivized by prosecutorial culture. This includes: The mentality associated with winning at any and all costs; Receiving promotions and pay raises based on conviction rates; and Toxic agency policy with respect to retaining or failing to severely punish prosecutors that engage in ethic violations, misconduct or criminal acts. 11

12 Incentivized Misconduct
In order to rid prosecutorial culture of unethical behavior, there must be: Clear ethical and professional guidelines developed for criminal prosecutors that are universal; Mandated ethics training for all criminal prosecutors; Mandated discipline and reporting of prosecutorial misconduct to state bar associations by courts and supervisors; The internal regulation of the prosecutor’s office with mandatory professional and conviction integrity units; and The removal of prosecutorial immunity from civil liability for wrongful convictions. 12

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