Overview,
Part 4: Moral Issues in Courts & Judicial Processing
This section
explores ethical issues related to the courts and judicial processing of
criminal cases, including lawyers ethics, the rights of criminal defendants,
plea bargaining and jury nullification.
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Author, Title &
summary |
Criminal Justice
Ethics topics and pages |
Lawyers Ethics
Responsibility for processing cases in a manner
consistent with justice falls on lawyers. Yet people are profoundly
cynical about lawyers and the concept of lawyers’ ethics. This
sentiment is expressed in jokes like: “Why are all the toxic dumps in
New Jersey and all the lawyers in California? New Jersey got the first
pick.” “Why didn’t the sharks eat the lawyer who fell overboard?
Professional courtesy.” The Sourcebook
of Criminal Justice Statistics, 1998 indicates that public
belief in the honesty and ethical standards of lawyers has declined in
the last 20 years, and people see the ethical standards of lawyers as
being about the same as labor union leaders, Congress members,
advertising practitioners, and insurance salespeople. Lawyers come out
slightly ahead of car salespeople (Tables 2.21 and 2.22).
Paul Haskell is well aware of the public
perception about lawyers and seeks to tell the untold story in “The
Behavior of Lawyers” from his book, Why Lawyers Behave As They Do.
Haskell presents 23 example scenarios – from exploiting mistakes and
lying in negotiations to lawyers helping achieve immoral objectives –
to discuss how the lawyers should behave and the rules of professional
responsibility that govern the case. Haskell notes that “aspect’s of
a lawyer’s exclusive dedication to the interests of the client are
considered by some moral philosophers to be morally unjustifiable.”
This concern is exactly the topic of Ted Schneyer’s “Moral
Philosophy’s Standard Misconception of Legal Ethics”. Schneyer
reviews many articles by moral philosophers to develop a Standard
Conception or critique of legal ethics that centers on principles of
neutrality (performing services for anyone) and partisanship (only
considering the client’s interests). He shows the complexity and
variety of moral principles and professional rules that might apply to a
situation, and he challenges moral philosophers to mine the “hard-won
understandings” of the legal profession that “so frequently involves
moral risks.”
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Plea Bargaining
The remaining articles shift the focus from
lawyers to policies and practices involved in processing defendants
through the courts. In “Criminal Justice And The Negotiated Plea,”
Kenneth Kipnis examines the coercion present in plea bargaining, through
which the vast majority of criminal cases are settled (in real life, if
not television dramas). Kipnis states that “in the gunman situation I
must choose between very certain loss of my money and the
difficult-to-assess probability that my assailant is willing and able to
kill me if I resist. As a defendant I am forced to choose between a very
certain smaller punishment and a substantially greater punishment with a
difficult-to-assess probability.” Under such circumstances, is the
plea ‘voluntary’? Readers who are struggling with a response to this
reasoning can read Alan Wertheimer, “The Prosecutor and the Gunman,”
Ethics 89, no. 3 (April 1979):
269-79.
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The Rights of Criminal
Defendants
O.J. Simpson attorney Johnnie Cochran and
Yale Law professor Akhil Reed Amar debate the timeless question, “Do
Criminal Defendants Have Too Many Rights?” Actually, they debate
several additional questions as well: about the lawyer’s exercise of
power in using challenges to shape the composition of the jury, the
value of excluding illegally gathered evidence, and whether criminal
defendants should be made to speak. Cochran argues his ideas are formed
“in the trenches” rather than in an “ivory tower with a pipe”;
Amar states that he can “call it as I see it” because “I don’t
make money off the system one way or another.”
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Jury Nullification
The Sixth Amendment to the Constitution
provides that an accused shall be tried by a jury of his peers. The need
for a finding of guilt by citizens of the community is part of the
shield to protect defendants from the power of the state. Indeed, juries
can engage in ‘nullification’ – refusing to follow the law and
return a not guilty verdict even when the facts point to guilt. Judge
Jack Weinstein discusses the uses and abuses of this discretion by
juries in, “Considering Jury ‘Nullification’: When May and Should
A Jury Reject the Law to Do Justice?” Our trust in juries to be the
conscience of a community is put to the test by the question of whether
juries should be informed of their right to nullify. Weinstein does not
believe in such instructions and likens it to “telling children not to
put beans in their noses.”
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