Law Commons^™

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …

Ministers Of Justice And Mass Incarceration, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system. As a consequence, there has been significant attention to the causes of mass incarceration. These include the war on drugs and political decisions based on a “law and order” perspective. Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas. All of this occurred as crime rates dropped. …

The Prosecutor’S Duty Of Silence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And …

In Memory Of Monroe Freedman: The Hardest Question For A Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

I’ve chosen to honor Monroe Freedman’s iconic essay on the hardest questions for a criminal defense attorney by posing the same question for prosecutors. What is the hardest question for a prosecutor? This in itself is a hard question. The thousands of federal, state, and local prosecutors in the country would likely give widely varying responses – discretionary charging, immunity grants, bargained pleas, unreliable witnesses, police testimony, and disclosure duties, for starters. Too, prosecutors are not a generic group. Just as some defense lawyers might recoil or be indifferent to Freedman’s provocative thesis, so might many prosecutors reject or be …

The Prosecutor’S Contribution To Wrongful Convictions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has …

Threats And Bullying By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Essay describes ten contexts in which prosecutors make threats and behave like bullies. Some of these contexts are familiar, such as grand jury proceedings or plea discussions, where threats are generally upheld. Threats in other contexts are not as easy to justify, such as threats to obtain testimony from prosecution witnesses, retaliating for the exercise of constitutional rights, forcing a waiver of civil rights claims, and publicly humiliating people. Other threats clearly are illegitimate and unethical, such as threats that drive defense witnesses off the stand, bringing criminal charges against outspoken critics and defense experts, and …

Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

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 …

Reflections On Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most fertile and widespread …

Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …

Witness Coaching By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators. Interestingly, however, the subject has received relatively modest attention. A handful of judicial and ethics opinions have discussed superficially the subject of witness preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, and occasionally address tactical and ethical issues involved in coaching. Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. In addition, popular culture occasionally has …

The Prosecutor's Duty To Truth, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the prosecutor's duty to refrain from conduct that impedes the search for truth. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory conduct; (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth-enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. Part I also …

Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part II offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a …

Tricks Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Criminal defense lawyers must recognize and challenge prosecutorial misconduct whenever it occurs. In my opinion, prosecutor's today wield greater power, engage in more egregious misconduct, and are less subject to judicial or bar association oversight than ever before. Few defense lawyers or commentators would disagree with these conclusions. Indeed, some types of prosecutorial misconduct have become almost “normative to the system.”

The New Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The power and prestige of the American prosecutor have changed dramatically over the past twenty years. Three generalizations appropriately describe this change. First, prosecutors wield vastly more power than ever before. Second, prosecutors are more insulated from judicial control over their conduct. Third, prosecutors are increasingly immune to ethical restraints. Only the last point may provoke some controversy; the first two are easily documented, and generally accepted by the courts and commentators.

Part I of this article examines in greater detail this vast accretion of prosecutorial power, and explains how this transformation has resulted in a radical skewing of the …

The Most Fundamental Change In The Criminal Justice System: The Role Of The Prosecutor In Sentence Reduction, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

As every lawyer knows, the prosecutor is the most powerful figure in the American criminal justice system. The prosecutor decides whom to charge, what charges to bring, whether to permit a defendant to plead guilty, and whether to confer immunity. In carrying out this broad decision-making power, the prosecutor enjoys considerable independence. Indeed, one of the most elusive and vexing subjects in criminal justice has been to define the limits of the prosecutor’s discretion.

The Adversarial System At Risk, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The most ominous recent development affecting the balance of forces in the adversary system is the unprecedented attack by prosecutors on criminal defense lawyers themselves. Grand jury subpoenas to attorneys, law office searches, disqualification motions, fee forfeiture proceedings, and, most recently, IRS attempts to enforce currency-reporting regulations do not seem to be isolated occurrences or mere happenstance. Rather, perhaps inspired by Shakespeare's injunction in Henry VI to "kill all the lawyers," some prosecutors appear to have concluded that the most effective way to prevail in the battle against crime is to cripple the defense lawyers, particularly those who represent defendants …

The Right To Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Although its theoretical basis may be disputed, nobody questions the proposition that a person charged with a crime has a constitutional right to present a defense. Presenting a defense naturally requires access to proof. Access includes not only the availability of evidence, but also its permissible use. Consider some examples: A defendant wants to testify, but his lawyer's threats drive him off the stand. A witness who might be expected to give favorable testimony for the defense appears at trial but refuses to testify. A defense witness wants to testify, but because the defendant failed to notify the prosecutor about …

Proving The Defendant's Bad Character, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The classic study of the American jury shows that when a defendant's criminal record is known and the prosecution's case has weaknesses, the defendant's chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as …

Reflections On Client Perjury, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Most experienced prosecutors, judges, and defense attorneys would probably agree that perjury in the criminal justice system occurs often. Although the frequency of perjury has never empirically been demonstrated, it is not surprising that with so much at stake, prosecution and defense witnesses would be tempted to fabricate testimony to meet the exigencies of the case. Detecting and dealing with perjurious testimony, however, is another matter. Implicated are complex legal and ethical problems for both prosecutors and defense attorneys. The judiciary's response to these problems, moreover, has largely been formalistic, without enunciating sufficiently clear standards to guide future behavior.

Why Prosecutors Misbehave, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author, perhaps the nation's top authority on prosecutorial misconduct, raises and analyzes two questions: Why does this misconduct occur? (It often pays off.) And why does it continue? (There are no effective sanctions.)

The "Perjury Trap", Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

It is the aim of the present Article, first, to explore the boundaries of legitimate grand jury interrogation as it bears on the subject of perjury and, second, to formulate guidelines that strike a balance between the needs of the investigatory process and the rights of witnesses.