Acknowledgments | p. xi |
About the Authors | p. xiii |
Introduction | p. xv |
Prosecution’s Role | p. 1 |
Are a Prosecutor’s Responsibilities ”Special&Idquo;? | p. 3 |
Few Ethics Rules Specifically Address Prosecutors | p. 3 |
Prosecutors Often Subject to Same Rules as Other Lawyers | p. 5 |
Berger v. United States | p. 5 |
Extraordinary Remedies | p. 6 |
Model Rule 3.8 | p. 7 |
When Are a Prosecutor’s Duties Distinct? | p. 9 |
Conclusion | p. 10 |
Resources for Chapter 1 | p. 10 |
Why Should Prosecutors ”Seek Justice&Idquo;? | p. 13 |
Rationales for Treating Prosecutors Differently | p. 14 |
The Government’s Overarching Interest in Justice | p. 14 |
Protecting Against Abuse of Power | p. 15 |
Asymmetry of Resources | p. 15 |
Public Confidence in the Justice System | p. 16 |
Promotes Open Government | p. 16 |
Risks of Injustice | p. 17 |
Conclusion | p. 17 |
Resources for Chapter 2 | p. 18 |
New Rules for Scientific and Exculpatory Evidence? | p. 19 |
Scientific Evidence | p. 19 |
Exculpatory Evidence | p. 23 |
Resources for Chapter 3 | p. 24 |
Defense Counsel’s Role | p. 27 |
Has.Gideon’s Promise Been Fulfilled? | p. 29 |
Crisis in Defense Systems | p. 29 |
Constitutional Standard for Adequate Assistance of Counsel | p. 31 |
The ABA’s Ten Principles | p. 33 |
Conclusion | p. 34 |
Resources for Chapter 4 | p. 34 |
Inadequate Representation and Wrongful Convictions | p. 37 |
Causes of Wrongful Convictions | p. 37 |
Ethical Dimensions of Inadequate Representation | p. 38 |
Remedying the Imbalance of Resources | p. 40 |
Conclusion | p. 41 |
Resources for Chapter 5 | p. 41 |
Criminal Practice and the Media | p. 43 |
Trial by Media: Arguing Cases in the Courtof Public Opinion | p. 45 |
Should Public Comment by Lawyers Be Regulated? | p. 45 |
Protecting Trials | p. 46 |
Protecting Clients | p. 47 |
Protecting the Public | p. 47 |
History of Ethics Regulation | p. 48 |
Current Ethics Rules Regulating Pretrial and Trial Publicity | p. 49 |
Borderline Issues | p. 51 |
Conclusion | p. 52 |
Resources for Chapter 6 | p. 52 |
Clients, Lawyers, and the Media | p. 55 |
Access to the Jury Room | p. 55 |
Interviews with Clients and Recording Defense Preparation | p. 57 |
Lawyers Entering into Media Contracts | p. 57 |
Client Media Deals and Lawyer Ethics | p. 58 |
Competent Representation | p. 59 |
Confidentiality | p. 60 |
Conflict of Interest | p. 60 |
Prosecutorial Objections | p. 60 |
Conclusion | p. 61 |
Resources for Chapter 7 | p. 61 |
The Role of Lawyers in Client Media Campaigns | p. 63 |
Rewards and Risks | p. 63 |
Who Decides? | p. 64 |
Competence | p. 65 |
Conflict of Interest | p. 66 |
Vicarious Ethics Violations? | p. 66 |
Conclusion | p. 69 |
Resources for Chapter 8 | p. 69 |
Client Autonomy | p. 71 |
Client Autonomy and Choice of Counsel | p. 73 |
Pro Hac Vice Admission | p. 74 |
Defense Counsel Conflicts | p. 75 |
The Pros and Cons | p. 75 |
Conclusion | p. 78 |
Resources for Chapter 9 | p. 78 |
Counsel or Client: Who’s in Charge? | p. 79 |
Allocation of Authority | p. 79 |
Disputes over Means | p. 81 |
Acquiescing to Counsel’s Decisions | p. 83 |
Conclusion | p. 85 |
Resources for Chapter 10 | p. 86 |
Conflicts of Interest | p. 87 |
The Supreme Court and Defense Counsel Conflicts | p. 89 |
The Legal Standard | p. 89 |
The Facts | p. 90 |
The Conflict in Mickens | p. 90 |
The Court’s Decision in Mickens | p. 92 |
Actual Conflict | p. 93 |
Adverse Impact? | p. 93 |
Conclusion | p. 95 |
Resources for Chapter 11 | p. 95 |
Campaign Pledges to Prosecute | p. 973 |
An Explicit Pledge to Prosecute | p. 97 |
What’s Wrong with a Pledge to Prosecute? | p. 98 |
Political Distortion | p. 98 |
Decisions Made on Incomplete Information | p. 99 |
Constraining the Exercise of Prosecutorial Discretion | p. 100 |
An Implicit Pledge to Prosecute? | p. 100 |
Conclusion | p. 101 |
Resources for Chapter 12 | p. 102 |
Investigation and Discovery | p. 103 |
To Tape or Not to Tape: Secret Recording | p. 105 |
The Pros and Cons | p. 105 |
The Law on Secret Recording | p. 106 |
The Ethics of Secret Recording | p. 107 |
Conclusion | p. 109 |
Resources for Chapter 13 | p. 110 |
Brother’s Keeper: Must You Protect Opponent’s Confidentiality? | p. Ill |
Confidentiality Basics | p. 112 |
Obligation to Another Lawyer’s Client | p. 112 |
Inadvertent Disclosure of Confidential Information | p. 113 |
The Cooperative Approach | p. 114 |
The Adversarial Approach | p. 114 |
Intermediate Positions | p. 115 |
An Array of Rationales | p. 116 |
Practical Implications | p. 117 |
Resources for Chapter 14 | p. 118 |
Anticontact Rule in Criminal Investigations | p. 119 |
The Rule | p. 119 |
Underlying Policies | p. 122 |
Prosecutors | p. 122 |
”Authorized by Law&Idquo; Exception | p. 123 |
Current Law | p. 124 |
Defense Counsel | p. 126 |
Conclusion | p. 127 |
Resources for Chapter 15 | p. 127 |
Destroying Documents | p. 129 |
Complexity Ambiguity and Variability | p. 130 |
Underestimating Reach and Impact | p. 131 |
Obstructing Access to Evidence; Wrongdoing by Employees | p. 132 |
Conclusion | p. 133 |
Resources for Chapter 16 | p. 133 |
Implicit Plea Agreements and Issues of Disclosure | p. 135 |
Legal Disclosure Obligation | p. 135 |
Ethical Disclosure Obligation | p. 136 |
Judicial Approaches to Implicit Plea Agreements | p. 137 |
Resources for Chapter 17 | p. 140 |
Plea Negotiations | p. 141 |
Disclosing Exculpatory Material in Plea Negotiations | p. 143 |
History | p. 144 |
Ethical Disclosure Obligation | p. 144 |
Implicit Brady Waivers | p. 146 |
Why Require Disclosure of Exculpatory Information During Plea Negotiations? | p. 146 |
Knowledge | p. 147 |
Sincerity | p. 149 |
Brady Disclosure as a Remedy | p. 151 |
Current Law | p. 151 |
United States v. Ruiz | p. 152 |
Implicit Waiver after Ruiz | p. 155 |
Implications of Brady Waivers | p. 156 |
Conclusion | p. 158 |
Resources for Chapter 18 | p. 158 |
Corporate Privilege Waivers in Plea Negotiations | p. 161 |
Corporate Attorney-Client Privilege | p. 162 |
Competence | p. 162 |
Conflict of Interest | p. 164 |
Brother’s Keeper | p. 164 |
A Compromise | p. 165 |
Resources for Chapter 19 | p. 166 |
Preparation for Trial | p. 167 |
Witness Preparation: When Does It Cross the Line? | p. 169 |
Virtues and Vices | p. 169 |
Ethical Rules | p. 170 |
Practical Concerns | p. 171 |
Preparing a Witness | p. 173 |
Resources for Chapter 20 | p. 173 |
The Alternative Perpetrator Strategy | p. 175 |
”Plan B&Idquo; | p. 176 |
To Use or Not to Use Plan B | p. 177 |
Critiques of Plan B | p. 177 |
Falsity | p. 178 |
Fairness | p. 179 |
Evidentiary Limits on Plan B | p. 180 |
Conclusion | p. 182 |
Resources for Chapter 21 | p. 182 |
Litigation Ethics | p. 185 |
Prosecutors Pursuing Inconsistent Prosecutions | p. 187 |
Advancing Inconsistent Theories of Prosecution | p. 187 |
A Prosecutor’s Options | p. 189 |
Why Do Prosecutors Do It? | p. 189 |
The Pursuit of Inconsistent Prosecutions | p. 190 |
Ethical Requirements for Prosecutors | p. 191 |
Possible Limits on Inconsistent Prosecutions | p. 192 |
Conclusion | p. 195 |
Resources for Chapter 22 | p. 195 |
”Thou Shalt Not Use Religion in Closing Argument&Idquo; | p. 197 |
The Bounds of Argument | p. 197 |
Religious References and Misconduct | p. 199 |
Reversible Error? | p. 201 |
Invited Response | p. 202 |
Two Lessons | p. 203 |
Conclusion | p. 204 |
Resources for Chapter 23 | p. 204 |
Table of Cases | p. 207 |
Index | p. 211 |
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