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Prosecutorial Ethics and Victims' Rights: the Prosecutor's Duty of Neutrality

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Prosecutorial Ethics and Victims' Rights: the Prosecutor's Duty of Neutrality CORE Metadata, citation and similar papers at core.ac.uk Provided by DigitalCommons@Pace Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 2005 Prosecutorial Ethics and Victims' Rights: The Prosecutor's Duty of Neutrality Bennett L. Gershman Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Constitutional Law Commons, Criminal Law Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Bennett L. Gershman, Prosecutorial Ethics and Victims' Rights: The Prosecutor's Duty of Neutrality, 9 Lewis & Clark L. Rev. 559 (2005), http://digitalcommons.pace.edu/lawfaculty/122/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. PROSECUTORIAL ETHICS AND VICTIMS' RIGHTS: THE PROSECUTOR'S DUTY OF NEUTRALITY by Bennett L. ~ershman* 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' ethical duties that victims 'participation may bring and suggests appropriate responses. I. INTRODUCTION .....................................................................................559 11. FOUR ETHICAL PROBLEMS ................................................................ 564 A. The Prosecutor as the Victim's Surrogate ......................................... 564 B. The Prosecutor as the Victim's Avenger ............................................569 C. Compromising the Prosecutor's Discretion ......................................572 D. The Unwilling Victim .........................................................................576 111. CONCLUSION .........................................................................................579 I. INTRODUCTION The role of the victim in the criminal justice system has increased dramatically in recent years. Whereas crime victims in the past lacked any meaningful role in the criminal justice process, crime victims today are afforded broad legal protections, including a right to be treated fairly and with dignity, a right to restitution for their injuries, a right to be protected from the accused, a right to be notified of and to be present at court proceedings, and a right to be heard at critical stages in the proceedings.' These protections are not Professor of Law, Pace Law School; B.A., Princeton University; J.D., New York University School of Law. ' Thirty-three states now have victims' rights amendments, and every state and the federal government have victims' rights statutes with varying provisions. See Steven J. Twist, On the Wings of Their Angels, 9 LEWIS& CLARKL. REV. 581, 588 n. 30 (2005) (listing state victims' rights amendments). Congress has recently enacted the Crime Victims' Rights Act, see 18 U.S.C. $ 3771(a)(2) (West, WESTLAW through March 2005 legislation), which affords crime victims (1) the right to be protected from the accused, (2) the right to timely and accurate notice of public court proceedings, (3) the right not to be excluded from public court proceedings, (4) the right to be heard at public court proceedings involving release, plea, sentencing, and parole proceedings, (5) the right to confer with the prosecutor, (6) the right to full and timely restitution, (7) the right to proceedings free from unreasonable delay, and (8) the right to be treated with fairness and respect. For the most comprehensive Heinonline 9 Lewis & Clark L. Rev. 559 2005 5 60 LEWIS & CLARK LAW REVIEW [Vol. 9:3 self-executing, however. At a minimum, their enforcement requires the involvement and cooperation of the prosecutor.2 Yet despite the prosecutor's important role in safeguarding the rights of victims, there has been little examination of the relationship between prosecutors and victims, and the extent to which that relationship implicates ethical rules regulating a prosecutor's c~nduct.~In fact, examining the role of the victim in criminal procedure illuminates the prosecutor's role as well. Given the victim's critical role in identifying and punishing offenders, one would reasonably expect prosecutors, if only as a matter of self-interest, to maintain a meaningkl and cooperative relationship with crime victims and to aggressively protect victims' righk4 To be sure, prosecutors enjoy several practical advantages in prosecuting crimes against victims that are not available to them in victimless crimes5 First, crimes involving victims, particularly crimes of physical violence, abuse of vulnerable persons, and invasions of personal and property rights, are likely to elicit a sympathetic response from a jury. Second, crimes against victims often produce indisputable evidence of an invasive act, permitting the prosecutor and his victim to present a compelling story that will readily be believed by a jury.6 Third, the prosecutor, through skillful use of evidence and argument, can exploit a jury's natural instinct to treatment of victims' rights, see DOUGLASE. BELOOF,VICTIMS IN CRIMINALPROCEDURE (1999). The court's involvement is at least as critical as that of the prosecutor in protecting victims' rights. See Walker A. Matthews, 111, Proposed Victims' Rights Amendment: Ethical Considerations for the Prudent Prosecutor, 11 CEO. J. LEGALETHICS 735, 748 (1998) ("judges are a major factor in the long term effects of victims' rights legislation"); State v. Casey, 44 P.3d 756 (Utah 2002) (although prosecutor breached his duty to notify victim of the right to be heard at defendant's plea proceeding, court remedied the violation by reopening plea proceeding and allowing victim to be heard). ' See Samuel R. Gross & Daniel J. Matheson, What They Say at the End: Capital Victims' Families and the Press, 88 CORNELLL. REV. 486, 513-14 (2003) (interviews with families of murder victims suggest that victims ordinarily take their cues from prosecutors whom they trust, who appear to be on the victims' side, and who have a monopoly over victims' cases). Victims, apart from their testimony, often provide investigative, financial, and tactical assistance to prosecutors. See, e.g.. People v. Eubanks, 927 P.2d 310 (Cal. 1997) (victim underwrites significant investigative costs); State v. von Bulow, 475 A.2d 995 (R.I. 1984) (victim's family and their private attorney provided prosecutor with relevant evidence obtained from private searches and interviews of witnesses); People v. Conner, 666 P.2d 5 (Cal. 1983) (en banc) (victim was a deputy prosecutor in same office prosecuting case); People v. Greer, 561 P.2d 1164 (Cal. 1977) (victim's mother employed in prosecutor's office and benefited from aggressive prosecution of defendant). These impressions are from my own experience as a prosecutor for ten years in New York City (1967-1976), as well as studying the criminal justice system for the past thirty years. To be sure, prosecutors may also enjoy advantages in prosecuting cases involving drugs, public corruption, white collar crimes, and organized crime. My own sense is that prosecuting crimes with victims gives prosecutors a surer means of winning a jury's sympathy and rapport than with victimless crimes. But see RICHARDOFSHE & ETHANWATTERS, MAKING MONSTERS(1994) (claiming that victims of child abuse may be creating false narratives based on memories of abuse created during psychotherapy). Heinonline 9 Lewis & Clark L. Rev. 560 2005 20051 PROSECUTORIAL ETHICS AND VICTIMS' RIGHTS 561 empathize with an alleged victim, and can invite revenge.' Fourth, since the issue before a jury usually is the victim's accuracy rather than her truthfulness, the prosecutor will probably be more successful in persuading a jury to accept the testimony of an honest but mistaken witness than the self-serving testimony of an unsavory witness with a strong motivation to lie (e.g., an accomplice or an informant).' Despite these advantages, a prosecutor cannot align herself exclusively with the ~ictim.~A prosecutor also owes an allegiance to constituencies that are independent of the victim-i.e., the general public and the accused. A prosecutor must attempt to reconcile this tripartite responsibility to protect the public from harm and protect the ri hts of the accused while at the same time protecting the rights of the victim. I k' Needless to say, balancing these interests properly and effectively requires considerable skill. To the extent that a prosecutor aligns herself too closely with a victim, a prosecutor may compromise her ability to evaluate the case objectively, to weigh the credibility of the victim impartially, to exercise her broad discretion fairly and dispassionately, and to protect the legal rights of the accused." On the other hand, a prosecutor who seeks to zealously protect the public from harm may view the victim as merely a means to convict a dangerous offender, may undervalue the right of the victim to be afforded a meaningful role in the proceedings, and may disregard the right of the defendant to be treated fairly.'* And finally, to the extent that a prosecutor seeks to protect a defendant's constitutional right to a fair trial, the prosecutor may engage in conduct that ' See infra notes 62-64 and accompanying text. See On Lee v. United
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