ETHICS, INTEGRITY AND HONOR AS A PROSECUTOR



ETHICS, INTEGRITY AND HONOR AS A PROSECUTOR

I. WHY BE A PROSECUTOR?

a. underpaid

b. heavy caseloads

c. understandably angry victims

d. conduct continually put under the microscope by the Appellate Court and the ARDC.

Why deal with all of the above, because there are victims who desperately need you. They need you to fight for their rights, to give voice to the voiceless, to go into the well of the court and pursue justice. Prosecutors fight for justice for the weak, the young, the old, the battered, the broken, for the innocent victim who is completely reliant upon you and the criminal justice system.

II. CONTINUE TO LEARN AND GROW AS AN ATTORNEY

a. Do no become complacent. Keep attending classes and seminars that enhance your skills and knowledge as an attorney – some classes require effort on your part, but your greatest weapon will be your knowledge and skill.

b. Realize that arguments that were once permissible are now reversible error. You must stay updated on the ever changing decisions handed down by the Appellate and Supreme Court.

c. “Style” is important

i. Take every opportunity to watch other attorneys in trial.

ii. Never be afraid to steal someone’s idea or style if it will work for you.

iii. Jurors are expecting “law and order” and “CSI.” So you need to keep their attention and deliver.

d. Technology in the courtroom is moving forward and you must learn it and use it.

i. Make use of the Illinois State Police forensics and diagramming animation unit.

ii. Use a “wolf vision” to make publishing pictures, exhibits, reports, etc. to the jury easier and look more professional.

iii. Use power point for closing argument or to enhance the testimony of an expert witness.

III. BE MINDFUL OF VICTIM’S RIGHTS AND TREAT VICTIM’S WITH COMPASSION

a. Easy to get frustrated with victims

i. Uncooperative at times

ii. Yell at us, call us names

iii. Blame us for everything that has gone wrong in their lives

iv. Even when you secure a good plea or guilty verdict, the victim does not seem pleased with your efforts

You must remember that victim’s are unhappy because they are victims. They feel violated, hurt, confused and angry. They do not understand how they became a victim. You might be the only person they have who cares about them and what has happened. Treat them with respect, kindness and compassion. Treat them how you would want to be treated if you were in their shoes.

b. There is an Illinois Victim’s Bill of Rights.

i. Right to be treated with fairness and respect throughout the criminal justice process

ii. Right to notification of court proceedings

iii. Right to communicate with the prosecution

iv. Right to make a statement at sentencing

v. Right to information about conviction, sentence, imprisonment and release of the accused

vi. Right to timely disposition of the case and following the arrest of the accused

vii. Right to be reasonably protected from the accused throughout the criminal justice proceeding

viii. Right to be present at trial and all court proceedings

ix. Right to have present at all court proceedings and advocate or other support person of the victim’s choice

x. Right to restitution

c. 725 ILCS 120/4(b)

i. A statement and explanation of the rights of the victims shall be given to a crime victim at the initial contact with the criminal justice system by the appropriate authorities and shall be conspicuously posted in all court facilities.

d. Always and Never

i. Always keep an open line of communication with your victims and witnesses

ii. Always be honest with your victim

iii. Never exaggerate or mislead your victim about quality of your case or possible dispositions

iv. Never nolle prosequi a case simply because the victim says that is what he or she wants or because it would be easier for you. Sometimes victims are saying they want charges dismissed only to keep their abuser happy.

v. Always prepare the victim for what happens at trial.

vi. Always remember that victims are terrified to walk into a courtroom, face their accuser and testify in a room filled with people.

IV. POWER AND DISCRETION

a. Must use both wisely!

i. You are given a badge and it is nice and shiny, but never use your badge for any purpose other than to show you are a prosecutor.

ii. You have authority to charge people with misdemeanors, felonies, orders of protections, etc. Use it wisely.

iii. Be careful when dismissing charges or tickets. Have you covered all the bases!

Remember that what you do can shape and change people’s lives dramatically. Being charged with a crime can have serious implications, regardless of disposition.

b. Illinois Rules of Professional Conduct 3.8(a)

i. The duty of a public prosecutor . . . is to seek justice, not merely to convict.

c. Illinois Rules of Professional Conduct 3.8 (b)

i. A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when such prosecutor or lawyer knows or reasonably should know that the charges are not supported by probable cause.

d. Know the charging standard for your office

i. Probable cause standard used by police and charging standard used by State’s Attorney may be different.

ii. Some SAO’s apply a higher burden for the charging of felonies.

iii. EX: The standard to charge a felony in Madison County is: after reviewing all of the admissible and relevant evidence in our possession at the time of the warrant application and considering the merits of any legal defenses is there a reasonable likelihood of success at trial.

e. Your job as a prosecutor is to pursue justice

i. Do not be pressured by any agency or person to charge a case unless you determine your charging standard has been met.

ii. Sometimes all of the legal elements for charging a case may seem to have been met, but you must ask yourself the next question which is will justice be served by charging this defendant.

V. EARN THE RESPECT OF YOUR COLLEAGUES AND JUDGES

a. Be on time

b. Be prepared

c. Be organized

d. Know your case better than anyone else in the courtroom

e. Dress like a professional – what image are you portraying

i. No cartoon ties

ii. No short skirts, stiletto heels or low cut blouses

iii. No wrinkled khakis and scuffed up shoes

iv. No capri pants or sandals

f. Be courteous to attorneys and court personnel not only because you should but because:

i. Clerks talk to the judges!

ii. Court reporters type the transcripts that you might need in a hurry.

iii. Clerks prepare the certified copies of conviction that may be important.

g. Discovery compliance pursuant to S.Ct. Rule 412

i. Make sure that the defense has been given the discovery in a timely manner.

ii. Last minute disclosure looks bad

iii. Specifically enumerate what has been provided in discovery, eliminating any question as to what has been provided to defense counsel.

iv. Never play games with discovery, if you have it, then the defense should have it.

v. Allow the defense to go through your file (except your work product) and put it on the record that the defense was allowed to do so.

h. Remember that you represent the People of the State of Illinois, you took and oath to do it ethically, honorably and to the best of your ability. You must never cross the line. The ends do not justify the means.

i. “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that is shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78 (1935)

VI. DO NOT BE “THE BLUFFER”

a. Make a fair offer and be reasonable during negotiations

b. If the defendant doesn’t want to take your fair offer, then be ready to go to trial.

c. Stick to your guns – don’t be pressured by anyone to make an offer that you are not comfortable with.

d. Don’t be a bluffer!

i. Do not get the reputation for making “tough” offers and then pleading them down to nothing. If you get a reputation for being a bluffer then attorneys will never accept your offer because they know eventually you will plea bargain your case away to nothing.

e. Don’t be afraid of losing a case at trial

i. If you win every single case you take to trial, then you aren’t taking the tougher cases to trial that you should.

ii. Not every case is a winner, but sometimes justice demands that you take it trial.

iii. If you go into court, do a good job, represent the People of the State of Illinois with integrity, then you will earn the respect of your colleagues and the court, regardless of the outcome.

VII. THE JURORS ARE WATCHING YOU!

a. Be aware that the jurors are watching you and everything you do during the trial, in the hallways, in the parking lot, etc.

b. Do not constantly whisper with co-counsel.

c. Be careful of what you leave laying on your table, jurors will walk by and look at it.

d. Do not show fear or surprise during the trial, unless you want the jury to know you are surprised and outraged by something that occurred in the courtroom. You should give the appearance that you planned everything that has occurred.

e. Be confident, jurors will follow you to a guilty verdict if you show confidence in your case and make a professional presentation of the facts.

f. Watch your facial expressions, rolling of the eyes, etc.

g. Do not laugh and chat with the defense attorney, be courteous but not friends.

h. Be mindful of what is going on the gallery, jurors watch spectators too.

i. Never turn your back on the jury unless you are at a sidebar with the judge.

j. Sometimes you have to take a breath and laugh at yourself.

VIII. YOU HAVE A DESTINY

a. With every action you take, every victim you speak to, every hearing and trial you conduct, you are building your reputation as a prosecutor.

b. Your reputation should be guarded and cared for.

c. It only takes one bad decision to destroy your reputation.

d. You must conduct yourself with dignity, with integrity, with reverence for what you represent.

e. The ends do not justify the means – ever!

f. There is a victim who needs you, needs your abilities, your passion, your skill. There is a victim who’s only chance for justice lies in hands.

Some may be prosecutors for a short time, while others may make it a career, but no matter which path you follow, you will look back on your time as a prosecutor and know that it was the greatest job you ever had. Do it honorably, do it ethically, do it right!

Lecture and Outline by Kyle Napp, Associate Circuit Judge, Madison County, Illinois.

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