Criminal Practice Ethics Miller Spring 2017
Session #1: The Unique Obligation of a Prosecutor to Seek Justice
Overview: In our first class, we will explore the unique role of a prosecutor. As Justice Sutherland stated in Berger v. United States, unlike most other attorneys, the prosecutor “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.” Thus, a prosecutor has a “duty to refrain from improper methods calculated to produce a wrongful conviction.” Despite these lofty notions, numerous articles and law school clinics focus on wrongful convictions. Are these isolated problems caused by a few unethical prosecutors or is this an endemic problem? If the latter, what factors contribute to wrongful convictions and what can be done to ameliorate them?
Readings: Berger v. United States, 295 U.S. 78 (1935).
The public expects prosecutors to be ethical. P is about Justice more than winning.
1. Where an indictment charges a conspiracy of several persons and the conspiracy proved involves only some of them, the variance is not fatal.
2. Where the proof shows two conspiracies, each fitting the single charge in the indictment, and each participated in by some but not all of the convicted defendants, one of them who was connected by the evidence with one only of the conspiracies revealed by it has no ground to complain of the variance if it did not affect his substantial rights.
3. The objects of the rule that allegations and proof must correspond are (1) to inform the accused, so that he may not be taken by surprise, and (2) to protect him against another prosecution for the same offense.
4. The purpose of Jud.Code § 269, as amended, was to end the too rigid application of the rule that, error being shown, prejudice must be presumed, and to establish the more reasonable rule that if, upon an examination of the entire record, substantial prejudice does not appear, the error must be regarded as harmless.
5. Misconduct of a United States Attorney in his cross-examination of witnesses and address to the jury, in a criminal case, may be so gross and persistent as to call for stern rebuke and repression — even for the granting of a mistrial — by the trial judge; and, when no so counteracted, it may required the reversal of a conviction, particularly when weakness of the case accentuates the probability of prejudice to the accused.
6. It is as much the duty of the United States Attorney to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
“He (P) 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. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed he should do so. But while he may strike hard blows, he is not at liber
ict court determined that her communications with her attorney would no longer be privileged. She appeals this finding. Held: Clients retaining counsel for criminal or fraudulent purposes should not expect that their communications will be privileged.
Rule 1.6 Confidentiality Of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
