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So-Called Prosecutor Misconduct

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Stop the presses. The American Bar Association's Criminal Justice Section is not entirely without redeeming social value. They have actually proposed something positive. More than that, they forwarded a proposal to the House of Delegates over the opposition of NACDL.

The legal profession sometimes inflicts public relations wounds on itself by continuing to use old terms to express concepts that have been expanded far beyond the commonly understood meaning of those terms. Among the worst examples is "prosecutor misconduct." It was originally "misconduct" to "suppress" evidence favorable to the defendant, but that concept has been expanded to failure to disclose information in the files of any police agency associated with the case, even if the prosecutor is completely unaware of the information. In Strickler v. Greene, 527 U.S. 263, 275, n. 12 (1999), for example, the information was in a police file in another county, unknown to the attorneys on either side.

The other side loves to exploit this term in debates, such as those over the death penalty, noting in grave tones how many judgments have been reversed for "prosecutor misconduct." Regular folks hearing that term, not knowing how broadly it has been expanded, get the (usually false) impression of some dastardly conspiracy to railroad the defendant. Now the Criminal Justice Section wants the ABA to go on record asking courts to distinguish between "attorney misconduct" and "attorney error." The recommendation and the reasons for it are on pages 67-68 of this PDF document.
RESOLVED, That the American Bar Association urges courts to distinguish between attorney misconduct and attorney error, and prior to the issuance of any order, opinion or finding that an attorney engaged in misconduct, courts first give the attorney a fair opportunity to address any charge of misconduct, and find that the attorney's act or omission was purposeful, knowing or intentional or otherwise violated an applicable disciplinary rule or law; and

FURTHER RESOLVED, That disciplinary agencies should not deem a finding of misconduct in an order, opinion or ruling by a court determinative of a disciplinary violation.

EXECUTIVE SUMMARY
1. Summary of the Recommendation
The American Bar Association urges courts to distinguish between attorney misconduct and attorney error, and urges courts to refrain from declaring in any order, opinion, or other public statement that an attorney engaged in misconduct unless the court finds, after giving the attorney a fair opportunity to address any charge of misconduct, that the attorney's act or omission was purposeful, knowing or intentional or otherwise violated an applicable disciplinary rule or law; and disciplinary agencies should not consider a judicial finding of misconduct in an order, opinion or other public statement to establish a disciplinary violation.
2. Summary of the Issue that the Resolution Addresses
The resolution addresses the concern that a public finding by a court that a lawyer or judge engaged in "misconduct" operates as a sanction with adverse impact on the person's reputation. The finding of misconduct should be preceded by a fair process and should only be made when the conduct rises to the specified level.
3. Please Explain How the Proposed Policy Position will Address the Issue
The standards set forth in the resolution will encourage courts to distinguish between attorney misconduct and attorney error
4. Summary of Minority Views
The National Association of Criminal Defense Lawyers has expressed opposition and will make a formal submission prior to the meeting. Among its concerns is that this resolution interferes with a defendant's fifth and sixth amendment rights.

A mere change in terminology "interferes with a defendant's fifth and sixth amendment rights"? Hard to see how that could be.

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