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Paul's Justice Page > Criminal Justice Ethics > Pt 4 Moral Issues in Courts & Judicial Processing

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. 

Lawyers Ethics

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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.” 

Lawyers Ethics

Truth, Justice & Lawyers Ethics

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.

Plea Bargaining

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.” 

Defendants' Rights

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.”

Jury Nullification

Up ] Ethics Overview ] 1: Morality of Law ] 2: What Should Be A Crime ] 3: Police Ethics ] [ 4: Courts & Lawyers ] 5: Penology & Punishment ] 6: Emerging Issues ] Appendix: Ethical Codes ]

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