Legal Ethics and Professional Responsibility Commons^™

Right To Counsel

Touro Law Review

No abstract provided.

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 …

Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman

Publications

No abstract provided.

The Prosecutor's Obligation To Grant Defense Witness Immunity, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The author enumerates the three most common situations in which the courts have required the prosecutor to offer immunity to defense witnesses: (1) to safeguard the defendant's right to essential exculpatory testimony; (2) where the use of the prosecutor's powers to grant immunity causes such distortion in the fact-finding process as to require granting immunity to defense witnesses; and (3) where immunity is required to remedy prosecutory misconduct such as the intimidation of witnesses. The use of the "missing witness" instruction to avoid reaching the constitutional issue is also discussed.

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.

Silence As A Trial Strategy After Strickland And Cronic: Ineffective Assistance Of Counsel?Nic : The Ineffective Assistance Of Counsel?, Jo Ellen Silberstein

Touro Law Review

No abstract provided.

It's About Time: Proposal For Recognition Of Statutes Of Limitation In Attorney Discipline, Ellen Y. Suni

Faculty Works

No abstract provided.

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 …

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.)

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

Toward A Common Law For Undercover Investigations - A Book Review Of Abscam Ethics: Moral Issues And Deception In Law Enforcement, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Judge Frankel And The Adversary System, William T. Pizzi

Publications

No abstract provided.

Survey Of Developments In West Virginia Law: 1979

West Virginia Law Review

No abstract provided.

The Adversary Model Is Bent, William T. Pizzi, Phillip S. Figa, Kenneth E. Barnhill, Jr.

Publications

No abstract provided.

Criminal Law - Ineffective Assistance Of Counsel - Burden On Defendant To Demonstrate That Serious Incompetency, Falling Measurably Below The Performance Ordinarily Expected Of Fallible Lawyers, Was Likely To Have Affected The Outcome Of Trial, Clifford H. Lange

Villanova Law Review (1956 - )

No abstract provided.

Multiple Representation And Conflicts Of Interest In Criminal Cases, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. Although the Supreme Court in Holloway v. Arkansas refused to hold that joint representation is unconstitutional per se, it recently approved Proposed Rule of Criminal Procedure 44(c), which would require trial courts to protect a defendant's right to counsel in this situation. After discussing the current approaches of the courts to the problems presented by joint representation, Professor Tague analyzes the proposed rule. He criticizes the proposed rule for its failure to define the role of the trial …

Presuming Lawyers Competent To Protect Fundamental Rights: Is It An Affordable Fiction?, Robert G. Lawson

Law Faculty Scholarly Articles

This article explores the ramifications of Wainwright v. Sykes, a case decided before the Supreme Court of the United States in 1977. The broad question before the Court in Sykes concerned the extent to which state prisoners should have access to federal court by use of the writ of habeas corpus. The narrow issue before the Court concerned the impact on a prisoner's claim for habeas relief of procedural defaults (such as a failure to object to evidence, a failure to perfect an appeal, etc.) that occur in the state proceeding under attack. In considering these important issues Justice …

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …

Prosecutorial Discretion, Plea Bargaining And The Supreme Court's Opinion In Bordenkircher V. Hayes, William T. Pizzi

Publications

No abstract provided.

The Prosecutor's Duty To Present Exculpatory Evidence To An Indicting Grand Jury, Michigan Law Review

Michigan Law Review

This Note explores the implications of the stark procedural disparities between prosecution by information and prosecution by indictment in those states where both methods are used. It first examines the consequences to a defendant of a prosecutor's decision to seek an indictment rather than proceed by information, the reasons underlying the discretion given the prosecutor to choose between the two methods, and the potential for abuse of this discretionary power. It then considers several alternative approaches for minimizing this potential for abuse. After rejecting possible constitutional objections to the disparity between indictment and information procedures and application of the common-law …

Legal Ethics And The Prosecuting Attorney, John O. Kizer

West Virginia Law Review

No abstract provided.

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …

Legal Ethics: Confidentiality And The Case Of Robert Garrow's Lawyers, Jeffrey Frank Chamberlain

Buffalo Law Review

No abstract provided.

James V. Headley: Right To Counsel For Petty Offenses

Georgia Law Review

The Court of Appeals for the Fifth Circuit in the case of James v. Headley' was confronted with the question of whether an accused is entitled to court-appointed counsel when charged only with a "petty offense," that is, an offense carrying a maximum penalty of six months in jail and/or a $500 fine. Basing its decision on the sixth amendment,the court concluded that the two appellants were entitled to have court appointed counsel. The court, in an opinion by Judge Wisdom, held that as a general proposition, there is a sixth amendment right to counsel for any defendant in a …

Protection Of Criminal Defendant From Prejudicial Publicity

Washington and Lee Law Review

No abstract provided.

The Duty Of Military Defense Counsel To An Accused, Alfred Avins

Michigan Law Review

This article is designed to study the manner in which those Canons of Professional Ethics have been assimilated into the administration of military justice and made the standards for the duty of a military defense counsel.

Criminal Law--Plea Of Not Guilty--Coercion By Judge, G. D. G.

West Virginia Law Review

No abstract provided.

Recent Cases, Law Review Staff

Vanderbilt Law Review

CRIMINAL PROCEDURE--FACIAL EXPRESSIONS AND GESTICULATIONS OF TRIAL JUDGE--PREJUDICIAL EFFECT ON JURY

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EMPLOYMENT SECURITY ACT--PERSONS COUNTED TO DETERMINE WHETHER AN EMPLOYING UNIT HAS REQUISITE NUMBER OF EMPLOYEES TO CONSTITUTE AN "EMPLOYER"--STUDENTS WORKING FOR SCHOOL TO PAY TUITION

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FEDERAL JURISDICTION--JURISDICTIONAL AMOUNT--INJUNCTION SUITS

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LEGAL ETHICS--SOLICITATION AND FEE SPLITTING--ATTORNEY CONTRACTING WITH LABOR UNION TO REPRESENT UNION MEMBERS FOR CONTIGENT FEE

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NEGLIGENCE--LANDOWNER'S DUTY OF CARE--DUTY OWED TO FIREMAN

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NEGLIGENCE--STANDARD OF CARE--ASSURED-CLEAR-DISTANCE-AHEAD RULE

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PERSONAL PROPERTY--TENANCY BY THE ENTIRETY--BANK ACCOUNTS

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PLEADING--GENERAL ISSUE--SCOPE IN TENNESSEE

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TORTS--CHARITABLE INSTITUTIONS--TORT LIABILITY OF CHARITABLE INSTITUTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR

Crimes-Improper Conduct Of Prosecuting Attorneys

Michigan Law Review

In a recent New York case, People v. Klvana (N'. Y. 1926) 150 N. E. 523, Hiscock, C. J. in commenting on the evidence was induced to remark, "We are aided in this analysis by the perfectly fair attitude of the district attorney who with a commendable conception of his duties presents this case to us neither attempting to exaggerate its strong points nor trying to obscure its weaknesses." That sort of remark is refreshing. It gives renewed faith in the honesty of the administration of our criminal laws and shows that the fundamental theory that it is as much …