Constitutionalizing Ethics

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread cynicism and distrust of the New York government, may be attributable to the state’s inability to enact meaningful and enforceable ethics laws. The public perception appears to be that New York’s government is not working for them and that some officials subordinate the good of the state to their own personal gain. It is this crisis in government ethics that to me offers one of the strongest arguments for amending the constitution to bring about meaningful ethics reforms

Lie Detection: The Supreme Court\u27s Polygraph Decision

In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense

Prosecutorial Ethics and Victims\u27 Rights: The Prosecutor\u27s Duty of Neutrality

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\u27 ethical duties that victims\u27participation may bring and suggests appropriate responses

The Prosecutor as Minister of Justice

Times have changed. Today, prosecutors are on top of the world. Their powers are enormous, and constantly reinforced by sympathetic legislatures and courts. The awful instruments of the criminal law, as Justice Frankfurter described the system,1 are today supplemented with broad new crimes, easier proof requirements, heavier sentencing laws, and an extremely cooperative judiciary, from district and state judges, to the highest Court in the land

The Prosecutor\u27s Obligation to Grant Defense Witness Immunity

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\u27s right to essential exculpatory testimony; (2) where the use of the prosecutor\u27s 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

Proving the Defendant\u27s Bad Character

The classic study of the American jury shows that when a defendant\u27s criminal record is known and the prosecution\u27s case has weaknesses, the defendant\u27s chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as ethical standards, by deliberately introducing inadmissible evidence in order to obtain a conviction, despite the risks involved

Mating has opposite effects on male and female sexually selected cuticular hydrocarbons

In Drosophila serrata flies, there is female choice for male cuticular hydrocarbon (CHC) profiles and male choice for female CHC profiles. Furthermore, both males and females can alter their CHCs: when there is more opportunity for mating, males express combinations of CHCs preferred by females; however, females appear to change CHC profiles to avoid male harassment. In this study, I investigate the effect of number of matings (0–4) on male and female sexually selected CHCs. Mating caused males to express CHCs associated with higher male mating success. Thus, successfully mating males are likely to have increased future mating success. Conversely, females that mated more times expressed CHC profiles that were associated with lower female mating success. Females maximized their offspring production by mating more than once, but additional matings did not provide additional benefits. Furthermore, number of matings did not affect female survival. In total, these results suggest that females alter CHC expression to discourage male courtship when additional matings are not beneficial. In conclusion, plasticity in male and female CHC expression can both increase variance in male mating success and decrease variance in female mating success, driving the evolution of sexually selected chemical signals

A Penal Colony for Bad Lawyers

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes seek to ensure zealous and meaningful representation. Nevertheless, these standards are very broad, and bad lawyering often escapes sanctions or even notice. Ironically, although bad defense lawyering, in my opinion, happens at least as often as bad prosecuting, the latter appears to have elicited more criticism by the media and the academic community. Why this disparate treatment of prosecutors and defense lawyers? It is a curious dichotomy, especially since bad lawyering by defense attorneys, as documented in many studies, accounts for at least as many miscarriages of justice as misconduct by prosecutors. To be sure, just as most prosecutors behave fairly and professionally, so do most defense lawyers represent their clients with skill and dedication. But, just as some prosecutors behave dishonorably, some defense lawyers behave incompetently. However, bad prosecutors are excoriated; bad defense lawyers are marginalized or ignored. Thus was born the idea--borrowed loosely from Kafka--of a “Penal Colony” as a disruptive innovation to improve the quality of American lawyers and punish the bad ones

Use of Race in Stop-and-Frisk : Stereotypical Beliefs Linger, But How Far can the Police Go?

The power of police to detain persons for a brief period to investigate suspected criminal activity--commonly known as “stop-and-frisk”--has always been one of the most contentious issues in law enforcement. Although there is general consensus that street stops are an important weapon in crime prevention, the belief has always existed that stop-and-frisk tactics are often used indiscriminately and abusively against minority groups

Prosecutorial Misconduct in Presenting Evidence: Backdooring Hearsay

Rules of evidence are designed to bring about just and informed decisions. One of these rules, the hearsay rule, is designed to ensure that juries receive reliable evidence, and that out-of-court statements ordinarily are inadmissible. Prosecutors are well aware of these evidentiary restrictions, but occasionally seek to circumvent them. The author describes methods used by some prosecutors to manipulate the hearsay rule and thereby distort the truth-finding process of the trial