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Full-Text Articles in Law
Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman
Bad Faith Exception To Prosecutorial Immunity For Brady Violations, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Part I of this Article discusses Imbler’s adoption of absolute immunity for prosecutors. Part II discusses Imbler’s extension of absolute immunity to a prosecutor’s violation of his disclosure duty under Brady v. Maryland. Part III describes the ease with which prosecutors are able to evade the Brady rule and the difficulty of enforcing compliance with Brady. Part IV discusses the absence of any meaningful sanctions to deter and punish prosecutors for willful violations of Brady. Part V proposes a bad faith exception to absolute immunity of prosecutors for Brady violations.
“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman
“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.
Reflections On Brady V. Maryland, Bennett L. Gershman
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 …
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.
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.
The Right To Evidence, Bennett L. Gershman
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 …