Moral Issues In Jurisprudence

1. Moral Issues In Jurisprudence

2. Moral Issues in Jurisprudence • Should judges, prosecutors and defense attorneys be held to the same or higher standards than other members of society? • Fairness? • Justice? • Why or why not?

3. Moral Issues in Jurisprudence • Basic Premise: One of the most important benefits the state provides is protection. • If judges and prosecutors are not always fair and just, what does that imply?

4. Moral Issues in Jurisprudence • Is it reasonable to require that judicial and prosecutorial oaths of office and codes of conduct that require fair and just treatment of citizens constitutes a promise to the public?

5. Moral Issues in Jurisprudence • Judicial and prosecutorial oaths of office and codes of conduct require fair and just treatment of citizens according to the law. • Should judges, prosecutors and defense attorneys be held to the same standard of public trust, responsibility and accountability as ordinary citizens? • What is the implication if that is not done?

6. Moral Issues in Jurisprudence • Oaths of Office and Codes of Conduct • If government oaths and codes of conduct are promises, they constitute a contract…. • Courts use codes of conduct as a basis for evaluating practitioners who have not explicitly or implicitly affirmed them. • Should that same standard apply to judges, prosecutors and defense attorneys?

7. Moral Issues in Jurisprudence The Bill of Rights • “No right is held more sacred, or is more carefully guarded, by the common law, than the right of the individual to the possession and control of his own person, free from all restraint or interference from others, unless by clear and unquestionable authority of law.”

8. Moral Issues in Jurisprudence • “Every resolution to an ethical dilemma must consider the act, the intention, the circumstance, the principles, the beliefs, the outcomes, the virtues, the narrative, the community, and political structures.” Robert Nash • Argument for discretion at all levels of the CJ system

9. Moral Issues in Jurisprudence • Professional Demands • These demands are often the same but occasionally differ from expectations for any decent human being.

10. Moral Issues in Jurisprudence • Professional Demands • Judicial Ethics • Avoid impropriety and its appearance • Social activities are limited under rules of ethics • Perform duties impartially and with due diligence • Refrain from inappropriate political activity

11. Moral Issues in Jurisprudence • Professional Demands • Judicial Ethics • Avoid impropriety and its appearance • Social activities are limited under rules of ethics • Judges’ personal affairs are considered relevant in in evaluating judicial integrity

12. Moral Issues in Jurisprudence • Professional Demands • Judicial Ethics • Perform duties impartially and with due diligence • Duty to uphold the integrity and independence of the judiciary • Judicial integrity reflects on public confidence in the judiciary generally

13. Moral Issues in Jurisprudence • Professional Demands • Judicial Ethics • Refrain from inappropriate political activity • It is expected that judges not be influenced by a lawyer’s assistance in judicial appointment or re-election

14. Moral Issues in Jurisprudence • Professional Demands • Judicial Ethics • The obligation to decide cases impartially imposes a duty to decide cases based on the law and the facts and not be influenced by any other factors.

15. Moral Issues in Jurisprudence • Professional Demands • Judicial Ethics • It is a fundamental principle of American jurisprudence that fairness requires both sides have an opportunity to be heard. • Judges shall not permit or consider ex parte communications. • Ex parte communication is communication from one side while the other side is not present.

16. Moral Issues in Jurisprudence • Professional Demands • Prosecutorial Duties • Decide individuals to prosecute • Decide charges to prosecute • Recommend penalty range • Additional Prosecutorial Demands • Avoid impropriety and its appearance • Perform duties impartially and with due diligence • Refrain from inappropriate political activity

17. Moral Issues in Jurisprudence • Professional Demands • Prosecutorial Ethics • Avoid impropriety and its appearance • Perform duties impartially and with due diligence • Refrain from inappropriate activity

18. Moral Issues in Jurisprudence • Professional Demands • Prosecutorial Ethics • Avoid impropriety and its appearance • Prosecutors’ personal affairs are considered relevant in in evaluating judicial integrity

19. Moral Issues in Jurisprudence • Professional Demands • Prosecutorial Ethics • Perform duties impartially and with due diligence • Prosecutorial duty exists to the public and to defendants • Duty to provide exculpatory evidence • Exculpatory evidence demonstrates, or tends to demonstrate, a defendant’s innocence or mitigates his conduct.

20. Moral Issues in Jurisprudence • Professional Demands • Prosecutorial Ethics • Refrain from inappropriate activity • It is expected that prosecutors not be influenced by a lawyer’s assistance in the prosecutors appointment or election

21. Moral Issues in Jurisprudence • Professional Demands • Prosecutorial Ethics • The government’s obligation to govern fairly is as important as its obligation to govern at all. • The prosecutor’s focus in criminal prosecution is not to win, but that justice shall be done.

22. Moral Issues in Jurisprudence • Professional Demands • Concept of Equal Protection Under the Law • “The worst citizen no less than the best is entitled to equal protection of the laws of his state and nation. By protecting the rights of those citizens who are charged with breaking society’s laws, the “worst citizens,” we ensure the rights of the law-abiding are protected.” Hugo Black, Supreme Court Justice

23. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Duties • Defend client interests within the limits of the law • Use all means within professional rules to achieve the client’s objective

24. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics • Defend client interests within the limits of the law • Regardless of the morality or social consequences of the client’s objective • Use all means within professional rules to achieve the client’s objective • Regardless of their impact on others or their relationship to justice

25. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Allowable Practices • Assert a client’s claim or position for which there is some factual or legal basis however remote the possibility that the claim or position will be sustained by the court or other arbiter and without regard to the cost that may be inflicted upon others.

26. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Allowable Practices • Counsel and assist clients in violation of the law as long as the client is not engaged in criminal conduct, fraud or other misrepresentation. • May counsel and assist client in breach of contract, negligent behavior, or violating regulations or statutes that carry only civil penalties because such conduct is not criminal or fraudulent.

27. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Allowable Practices • Inform clients of potential consequences of contemplated criminal or fraudulent activities. • Includes whether there is likelihood of detection and the possible severity of criminal sanctions.

28. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Allowable Practices • Present evidence that he suspects, but does not know to be false. • Prepare clients, or witnesses for clients, by telling them what the law is on a matter before asking them what happened.

29. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Allowable Practices • Impeach credibility of opposing witnesses that he knows are telling the truth. • Argue to judges and juries based on evidence that he believes, but does not know, to be false.

30. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Allowable Practices • Decline to advise an unrepresented person to the need for legal assistance to avoid risks to which that person may unwittingly expose herself.

31. Moral Issues in Jurisprudence • Professional Demands • Defense Attorney Ethics: Unallowable Practices • Lying (Except in negotiations) • Assisting in criminal or fraudulent activities • Presenting knowingly false evidence • Destroying evidence in litigation • Committing crimes of moral turpitude • Asserting frivolous claims • Using tactics without basis in law or fact solely for purpose of delay or harassment

32. Moral Issues in Jurisprudence • Trust requires trustworthiness. • Police • Doctors • Public Officials • Judges, Prosecutors and Defense Attorneys • Students and Teachers

33. Moral Issues in Jurisprudence • Consequentialist Theory: Utilitarianism • Utilitarians argue that: • 1. Other moral considerations such as duty, rights and justice are subordinated to, and their content determined by, the principle of utility. • 2. What is just is producing greatest utility. • 3. As circumstances change, consequences change, and so do our duties, rights and requirements of justice.

34. Moral Issues in Jurisprudence • Implications of Utilitarianism • 1. Act Utilitarian • Choose actions based on greatest balance of pleasure over pain • 2. Rule Utilitarian • Acts are permissible if they are not prohibited by the best set of rules.

35. Moral Issues in Jurisprudence • Criticisms of Utilitarianism • 1. Act Utilitarian -- Injustice • It is unjust to punish someone for something they did not do regardless of other beneficial consequences. • 2. Rule Utilitarian -- Limited Exceptions • It does not distinguish between morally obligatory acts and superogatory acts.

36. Moral Issues in Jurisprudence • Communitarianism Theory • Morality is defined by ideals that define and hold groups together.

37. Moral Issues in Jurisprudence • Implications of Communitarianism • 1. Groups establish their own norms. • 2. Morality becomes equivalent to group endorsement.

38. Moral Issues in Jurisprudence • Criticisms of Communitarianism • 1. Groups norms differ. • 2. Some group norms, such as racial or sexual discrimination, are wrong.

39. Moral Issues in Jurisprudence • Deontological Ethics • Morally involves more than only producing good consequences. Morally right actions are done because we have a duty to do them.

40. Moral Issues in Jurisprudence • Implications of Deontological Ethics • 1. Morality is not determined by the consequences of an action. • 2. Morality is determined by the test that the act would be acceptable in determining universal law. • 3. Actions that do not treat other with respect, but rather uses them as a means to an end, are wrong.

41. Moral Issues in Jurisprudence • Criticisms of Deontological Ethics • 1. It is complex and abstract. • 2. It does not resolve what is agreed to as acceptable to all people.

42. Moral Issues in Jurisprudence • Virtue Ethics • Morality is determined by individual goodness rather than goodness of rules or goals.

43. Moral Issues in Jurisprudence • Implications of Virtue Ethics • Right actions are determined only on the basis of their being “right.”

44. Moral Issues in Jurisprudence • Criticisms of Virtue Ethics • 1. It is simplistic and complex at the same time. • 2. It does not provide much help in deciding between moral dilemmas.

45. Moral Issues in Jurisprudence • Contractarianism • People agree to social contracts. • This is also a basis for examining morality.

46. Moral Issues in Jurisprudence • Implications of Contractarianism • 1. Contract determine obligations. • 2. The obligations are binding when parties to the contract fulfill their obligations. • 3. Does not allow sacrifice of the few for the good of the many. • 4. Emphasizes concrete benefits

47. Moral Issues in Jurisprudence • Criticisms of Contractarianism • 1. Implied contracts exist as a result of membership in the state. • 2. Majority rules in most instances. • 3. Some individual freedoms are sacrificed.

48. Break • Read Assignments • Participate in Class Discussions • Review Notes Weekly