Legal Ethics and Professional Responsibility Commons^™

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Adam M. Gershowitz

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Leveling Felony Charges For Withholding Evidence, Jodi Nagzger

Jodi Nafzger

This Article addresses the intersection of the rule of Brady v. Maryland, 373 U.S. 83 (1963), and ABA Model Rule of Professional Conduct 3.8. Brady requires prosecutors to automatically disclose materially exculpatory evidence in the government’s possession to the defense. ABA Model Rule 3.8 requires a prosecutor in a criminal case “to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” The ABA issued a formal opinion in 2009 which concluded that the prosecutor’s ethical duty under 3.8 is broader in …

Discovery And Adequate Plea Colloquys, R. Michael Cassidy

R. Michael Cassidy

Hiding The Elephant (How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial), Sydney A. Beckman

Sydney A. Beckman

In 1917 Harry Houdini performed a single, yet incredible, illusion; “[u]nder the bright spotlights of New York’s Theatre Hippodrome, he made a live elephant disappear.” In 1983 David Copperfield made the Statue of Liberty Disappear in front of both a live and a national television audience. To be sure, neither the elephant nor Lady Liberty actually disappeared. But from the perspective of the audience they did, indeed, disappear. So which is correct? Did they, or didn’t they?

Trial Lawyers and Magicians share many of the same talents and skills. Misdirection, misinformation, selective-attention, ambiguity, verbal manipulation, body language interpretation, and physical …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

David S Caudill

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Legal Ethics And Scientific Testimony: In Defense Of Manufacturing Uncertainty, Deconstructing Expertise And Other Trial Strategies, David Caudill

David S Caudill

No abstract provided.

Panelist, Can Law Schools Prepare Students To Be Practice Ready?, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Speaking Science To Law, Deborah Hussey Freeland

Deborah M. Hussey Freeland

involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.

This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary--but …

Strategic Austerity: How Some Law School Affordability Initiatives Could Actually Improve Learning Outcomes, R. Michael Cassidy

R. Michael Cassidy

The legal profession is facing profound and perhaps irreversible changes. Whether you view these striking demographics as a “crisis” likely depends on the location of your perch. If you are a tenured professor at a T14 law school or a senior partner at an NLJ 250 firm, you may view the trends we have been discussing today as cyclical corrections. If you are an unemployed graduate looking for work or an untenured professor at a lower-tier school that is struggling to stay afloat, you may be more likely to view these trends as permanent and paradigm shifting.

While applications to …

Integrating Professional And Personal Values, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Beyond Practical Skills: Nine Steps For Improving Legal Education Now, R. Michael Cassidy

R. Michael Cassidy

It has been five years since the Carnegie Report “Educating Lawyers” called upon law schools to adopt an integrated approach to professional education that teaches practical skills and professionalism across the curriculum. Yet so far, very few schools have responded to this clarion call for wholesale curricular reform. Considering the inertial effect of traditional law school pedagogy and the institutional impediments to change, this delay is not surprising. A fully integrated approach to teaching professional skills (such as the medical school model) would require major resource reallocations, realignment of teaching responsibilities, redesign of courses, and a change to graduation requirements. …

Eliminating Political Maneuvering: A Light In The Tunnel For The Government Attorney-Client Privilege, Patricia E. Salkin, Allyson Phillips

Patricia E. Salkin

The long recognized common-law privilege afforded to certain conversations between attorneys and their clients has been the subject of troubling opinions when the lawyer and client are high ranking government officials. In a series of opinions from the 7th, 8th and D.C. Circuit Courts of Appeals, the courts refused to recognize the existence of the attorney-client privilege for the government actors under the circumstances surrounding the cases. However, recent opinions from the 2nd Circuit state that these other courts were simply wrong, setting the stage perhaps, for the U.S. Supreme Court to resolve the issue. Whether this privilege is equally …

Guide To Incorporation Of Not For Profit Organisations In Nigeria, Taiwo Adebola Odumosu Mr.

Taiwo Adebola Odumosu Mr.

The incorporation of non-profit bodies in Nigeria is governed by the Companies and Allied Matters Act, 2004 (‘the Act’). The Corporate Affairs Commission (CAC) is vested with responsibility for non-profit organisations. The CAC has branches in most State capitals of the Federation and its headquarters is based in Abuja, the Federal Capital Territory. Before applying to the CAC for incorporation of a non-profit body, one must check that the name of the new entity is not already in use. This can be done by purchasing an Availability Form, which costs very little. In Nigeria only legal practitioners, and to some …

The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy

R. Michael Cassidy

While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly …

Virtue And Criminal Punishment, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Social Media And Legal Ethics, Jonathan I. Ezor

Jonathan I. Ezor

A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The …

Prosecutorial Ethics, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

El Derecho De Sucesiones Se Debe Atemperar A Los Cambios De La Sociedad Del Siglo Xxi, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

R. Michael Cassidy

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently …

"Waiving" Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Moriarty

Jane Campbell Moriarty

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers (“Proposed Standards”) address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called “preconditions” that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed “Queen for a Day” agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex …

Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Panelist, Developments In Criminal Procedure, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Lawyers And Fundamental Moral Responsibility, R. Michael Cassidy, Daniel Coquillette, Judith Mcmorrow

R. Michael Cassidy

The materials in this book are organized around specific problems designed to encourage and focus class discussion. There are two other inherent organizing principles of the materials in this book. First, the philosophical materials are in the rough order in which the ideas themselves evolved in the history of philosophy. The materials have been revised since the book first was published in 1995 to address some of the burning ethical problems of our day, including terrorism, national security, and abuse of government power. The Second Edition also is reorganized to assist students to better appreciate philosophical theories underpinning discourse about …

My Doctor Made Me Crazy: Can A Medical Malpractice Plaintiff Allege Psychological Damages Without Making Credibility The Issue?, Brendan T. Beery

Brendan T Beery

This article explores the issue of psychological damages and challenges the pervasive notion among defense lawyers in medical malpractice cases that medical and psychological evidence obtained in discovery can be used to embarrass a medical malpractice plaintiff in front of a jury.

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Maieusis Through A Gated Membrane: "Getting The Science Right" In Public Decisionmaking, Deborah Hussey Freeland

Deborah M. Hussey Freeland

Law meets science in a remarkable variety of contexts. While their interactions are often studied in particular contexts, general theories of their interaction are wanting. This paper presents a general model of an interface between law and science that identifies how their interaction must be structured to promote effective interdisciplinary collaboration, and then demonstrates how this model can be used to analyze problems as diverse as: a large-scale intergovernmental attempt at ecosystem restoration; and the effects of a method of science-based alternative dispute resolution on science and negotiated outcomes. In both cases, the model features of a properly functioning law-science …