Unethical Conduct by Prosecutors

[lawrocket 3]

Hypothetical - Imagine two guys are working together to commit a murder. One person strikes the fatal blow. At trial of defendant #1, separate from #2, the prosecution's theory is that #1 struck the fatal blow. The jury convicts #1 and sentences #1 to the death penalty, which is unavailable against the accomplice.

At the trial of defendant #2, the same prosecutor advances the theory that #2 struck the fatal blow, and that #1 was the accomplice. The jury convicts #2 and sentences #2 to death, which is unavailable for the accomplice.

This is no hypothetical. A couple of weeks ago, the California Supreme Court held that the due process rights of one defendant are implicated when a prosecutor secures two convictions for the same crime using irreconcilable theories.

The US Supreme Court will be taking up this issue soon to rule on this issue from an Ohio case. Hopefully, the USC will set up some rules and framework to limit the prosecution's tactics.

Personally, I do not know whether this implicates due process. I do believe that this certainly constitutes unethical conduct on the part of the prosecutors. These prosecutors are not doing the right thing, but instead adopting a "win at all costs" attitude. Most of the voting public likes this. DA's are elected. It's a damn shame.

The problem is that the Court may have to fashion a remedy for unethical conduct by prosecutors. This stuff needs to stop. I need to get some more trust in the fairness of our system.

Hopefully, the SUpreme Court will limit this conduct out of sheer equity.

My wife is hotter than your wife.

[wmw999 2,600]

It sounds like an episode of "Law and Order." One of the ones where you realize that the prosecutors are human and not always right.

It's icky.

Wendy W.

There is nothing more dangerous than breaking a basic safety rule and getting away with it. It removes fear of the consequences and builds false confidence. (tbrown)

[kallend 2,175]

Good job such things can't happen in Texas.

"I'm confident that every person that has been put to death in Texas under my watch has been guilty of the crime charged, and has had full access to the courts.", George W. Bush.

...

The only sure way to survive a canopy collision is not to have one.

[SkyDekker 1,465]

So, at least one of them has been convicted to die for a crime he did not committ. Yup, I agree that death penalty is great.

[lawrocket 3]

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Good job such things can't happen in Texas.

"I'm confident that every person that has been put to death in Texas under my watch has been guilty of the crime charged, and has had full access to the courts.", George W. Bush.

Well, see, that's the issue. No doubt these guys were guilty of murder, i.e., felony murder. The issue with these theories is that they implicate sentencing. Does the accomplish get the death penalty? Depends on his involvement.

Both guys are guilty of murder by law, though not necessarily a homicide by fact. The problem is when prosecutors want the win, and not the truth. This implicates sentencing...

My wife is hotter than your wife.

[justinb138 0]

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Does the accomplish get the death penalty?

Death Penalty In California? I don't see it happening for either of them... Haven't they only executed about 2 or 3 death row inmates in the last 20 years ?

[mcarchangel 0]

Two things I'm wondering about. First is that arguing in the alternative is something my law professers talk about quite a bit. Also, what if the evidence points to the fact that they were both there, but you don't actually know who struck the fatal blow. Since they are likely to implicate each other, what do you do? Charge the guy who doesn't lie as well as his buddy? You can charge both as murderers or both as accomplices, which is better for public policy and safety. Plus remember California is one of the few states to still have felony murder on the books. In most states the choice is murder or a lesser crime.

-------------------------------------------------------
"These are the old days, the bad days, the all-or-nothing days. They're back! There's no choice left, and I'm ready for war."

[miked10270 0]

And here we have the fundamental problem of having an "adversarial" system of justice.... Where "winning" has subjured establishing the truth.

Mike.

Taking the piss out of the FrenchAmericans since before it was fashionable.

Prenait la pisse hors du FrançaisCanadiens méridionaux puisqu'avant lui à la mode.

[chuckbrown 0]

Read today's New York Times. There was a story about a guy who spent 9 years in prison because the DA refused to give the defense evidence that would have helped him (like they're required to do). The DA even fought the case in several challenges until a federal judge decided that the defendant could start deposing the DAs. The DA settled fast, then.

There are a lot of good prosecutors out there, unfortunately the asshats among them can ruin a life very easily and for no reason other than their own whim.

[jdhill 0]

Can defense #1 not introduce the fact of defendent #2's (or visa versa) trial? It would seem that even a public defender could raise enough doubt as to who struck the fatal blow that neither would get the DP.

J

All that is necessary for the triumph of evil is that good men do nothing. - Edmund Burke

[lawrocket 3]

Sure you offer alternative theories. That's how you start. But as you work up the case, you start ruling out more and more theories until you have one that sticks. Criminal defense attorneys, for good reason, are not bound by this.

You'll be practicing in California. Under Rules of Professional Conduct Rule 5-200(A), "In presenting a matter to a tribunal, a member: Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;"

Under Rule 5-110, "A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause. If, after the institution of criminal charges, the member in government service having responsibility for prosecuting the charges becomes aware that those charges are not supported by probable cause, the member shall promptly so advise the court in which the criminal matter is pending."

Now probable cause is pretty interesting, but here's a situation where two people are doing time for a crime only one could commit. Does policy favor potentially executing two people or no people?

Personally, I'd rather see both do long prison stints than one get unfairly executed.

My wife is hotter than your wife.

[lawrocket 3]

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Can defense #1 not introduce the fact of defendent #2's (or visa versa) trial? It would seem that even a public defender could raise enough doubt as to who struck the fatal blow that neither would get the DP.

J

Nope. I believe that's called hearsay...

My wife is hotter than your wife.

[jdhill 0]

So you couldn't ask say the lead investigator (who is probably going to be called in both trials) "was there someone else involved in this event? Were they also tried for this crime? What was the outcome of that trial? Did you testify at that trial? What did you testify to as to who struck the fatal blow in that trial?

It does not seem that would be hearsay.

J

All that is necessary for the triumph of evil is that good men do nothing. - Edmund Burke

[chuckbrown 0]

Hearsay: An out of court statement offered to prove the truth of the matter asserted.

If it was said out of court and is being offered for the truth of the statement it's hearsay and is inadmissible.

Unless one of the exceptions to the hearsay rule applies, but that's another lesson.

[jdhill 0]

But it would also be a matter of public record, in the court transcript of the other trial... he (the lead investigator) would be testifying, in court, to his own actions...

How about, what other theroy of the fatal blow was investigated? Why was it discounted? If the investigator answers one way in one trial, and another way in another trial, he will have purgered himself in at least one of them... it does not seem that those would be hearsay becasue they go to the conduct of the investigation, again his own actions and thinking.

J

All that is necessary for the triumph of evil is that good men do nothing. - Edmund Burke

[lawrocket 3]

Dude, when you state your name in court, that's hearsay. Why? Someone told you your name is what it is. Of course, your name falls under an exception, so it is admissible.

Testimony in other court cases is inadmissible. You may be able to use transcripts from the other trial to impeach the testimony of the witness in this trial, but you cannot use to transcripts from the other trial to prove the contents of that prior testimony.

My wife is hotter than your wife.

[billvon 3,131]

>Testimony in other court cases is inadmissible.

It is not permissible to ask someone if they have ever been convicted of a felony? Or if their accomplice has ever been convicted of a felony?

[jdhill 0]

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Testimony in other court cases is inadmissible.

Even if it is by the same witness, related to the same investigation? That seems backwards.

I could see where someone else's testimony would be hearsay, but not the same witness

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hear·say ( P ) Pronunciation Key (hîrs)
n.
Unverified information heard or received from another; rumor.
Law. Evidence based on the reports of others rather than the personal knowledge of a witness and therefore generally not admissible as testimony.
The American Heritage® Dictionary of the English Language, Fourth Edition

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Main Entry: hear·say
Pronunciation: 'hir-"sA
Function: noun
: a statement made out of court and not under oath which is offered as proof that what is stated is true called also hearsay evidence
Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc

It seems ones own testimony should be able to be introduced, or be a legitimate line of questioning.

J

All that is necessary for the triumph of evil is that good men do nothing. - Edmund Burke

[lawrocket 3]

It didn't used to be. Then, in California, a ballot initiative amended the evidence code. It used to be that a prior felony conviction could not be used to impeach credibility unless under certain exceptions.

Now, under the Evidence Code section 788, for the purpose of attacking the credibility of a witness, it
may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony. Of course, even this has been limited somewhat.

I've used it to my benefit. Actually, I wouldn't have been able to get it in (it was 14 years before) had she not lied about "no felony convictions" under oath.

Note: California's law differs from Federal Rules of Evidence...

My wife is hotter than your wife.

[chuckbrown 0]

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>Testimony in other court cases is inadmissible.

It is not permissible to ask someone if they have ever been convicted of a felony? Or if their accomplice has ever been convicted of a felony?

If you're asking the defendant, it's generally not admissible to do that on the theory that you want the jury to convict for the crime charged not because the defendant is a bad person (had prior convictions).

If you're asking that of a witness it may be admissible if you're seeking to impeach the credibility of the witness and the prior crime was for, say, fraud. An aggravated assault conviction probably wouldn't be admissible to impeach a witness for his credibility, but, then again the judge might allow it.

[chuckbrown 0]

If you don't have the witness in court testifying, it's hearsay, unless an exception applies. The whole purpose behind the hearsay rule is for the witness to come forward and be seen and heard by the jury so they can look the witness in the eye and decide whether they want to believe them.

[jdhill 0]

In my scenario, the witness was the lead investigator, and the line of questioning was to his investigation, and his testimony in the parallel case... not anyone elses... with the intent of showing a jury that the prosecution was putting forward a different case in another trial for the same crime... that does not seem to be hearsay to me.

J

All that is necessary for the triumph of evil is that good men do nothing. - Edmund Burke

[lawrocket 3]

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In my scenario, the witness was the lead investigator, and the line of questioning was to his investigation, and his testimony in the parallel case... not anyone elses... with the intent of showing a jury that the prosecution was putting forward a different case in another trial for the same crime... that does not seem to be hearsay to me.

J

As I said above, if you have a transcript of the prior testimony, you can cross-examine that witness with inconsistent statements.

Of course, the investigator may have an explanation, i.e., "That testimony was based on what we knew at the time. Since then, we've found..."

My wife is hotter than your wife.

[chuckbrown 0]

Unless his prior testimony is inconsistent with what he testified at the present trial, it's hearsay. (Edited to add: actually it is hearsay, but admissible under an exception). I didn't make up the rules, I just know them.

You can question him at the second trial, and then say "well that's not what you said at an earlier trial, now is it?" And then go back to his prior testimony to show that it's different. If in the current trial, your investigator says "I do A for murder investigations," you can introduce his prior testimony if he said "I do B for murder investigations." The defense point being that the investigator does a poor job of investigating crime and his conclusions can't be trusted.

[jdhill 0]

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"That testimony was based on what we knew at the time. Since then, we've found..."

Wouldn't that then be grounds for convict #1 to appeal, at least his sentance?

And if the trials are running concurrently, and the witness is recalled in one or both after testifying in the other, doesn't he run the risk of a purgery charge?

All that is necessary for the triumph of evil is that good men do nothing. - Edmund Burke