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Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman
Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors' ethical duties that victims'participation may bring and suggests appropriate responses.
Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin
Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.
The Prosecutor's Duty To Truth, Bennett L. Gershman
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 …
Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman
Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman
Elisabeth Haub School of Law Faculty Publications
No abstract provided.
What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton
What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton
Elisabeth Haub School of Law Faculty Publications
For the purpose of this article, the relevance of my experience as a criminal defense attorney is this: if ever one might expect to find a prosecutor inclined to err on the side of fairness of process and protecting the rights of defendants, it ought to be me. Also, for more than twenty years, I have been something of a professional ethicist--as research fellow, teacher, staff member of an ethics center, chair and/or member of several institutional review boards, pro bono trial counsel to a disciplinary committee, ethics consultant, and expert witness--and, therefore, one might think, especially susceptible to the …
Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman
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 …
New Insights On Waiver And The Inadvertent Disclosure Of Privileged Materials: Attorney Responsibility As The Governing Precept, Audrey Rogers
New Insights On Waiver And The Inadvertent Disclosure Of Privileged Materials: Attorney Responsibility As The Governing Precept, Audrey Rogers
Elisabeth Haub School of Law Faculty Publications
This Article suggests that fostering the development of attorney responsibility should be the central goal in addressing the issues raised by the inadvertent disclosure. Deciding the waiver issue by concentrating on attorney responsibility will help prevent inadvertent disclosures (and resultant waivers) by impressing upon the attorney the need to take care to avoid them. When disclosures inadvertently occur, the amount of precautions the attorney took (albeit unsuccessfully) should determine whether the privilege is waived. Placing the onus of precautions against inadvertent disclosure on the attorney is not only beneficial to the client, but also aids the profession, and the overall …
A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman
A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a …
The Adversarial System At Risk, Bennett L. Gershman
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 …
Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman
Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
How much, if at all, can a criminal defense lawyer cooperate in his or her client's decision to commit perjury? Courts, commentators, and bar committees have grappled with this question for years without offering clear or consistent guidelines. Any principled response must take into account some very hard questions. Under what circumstances, for instance, does the lawyer ever really "know" that his client's proposed testimony is false? Is it sufficient if the lawyer simply disbelieves his client's story, or that of his client's witnesses? Does it make any difference if the attorney learns of a plan to perjure during the …