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Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?

NCJ Number
American Criminal Law Review Volume: 47 Issue: 3 Dated: Summer 2010 Pages: 1135-1183
Anne Bowen Poulin
Date Published
49 pages
This article examines conflict situations in which the prosecution has special access to information regarding the conflicts.
This article explores two types of conflicts of interest which threaten to inhibit defense representation: when defense counsel has, had, or seeks employment as a prosecutor; and when defense counsel is faced with criminal charges while simultaneously representing a criminal defendant. Both these situation pose a conflict of counsel and also create an appearance of unfairness. After the introduction in Section I, Section II provides an overview of the constitutional analysis of and relief for defense counsel conflicts of interest. Section III discusses the importance and benefit of early intervention. Section IV considers the possible conflict when counsel has, had, or is seeking employment as a prosecutor. Section V examines cases in which counsel is charged with a crime or is under investigation for criminal activity. Section VI argues that, given the difficulty of obtaining post-conviction relief and the benefit of early intervention, the prosecution should have the burden of discovering and disclosing the relevant facts before trial and raising the question of counsel's possible conflict.


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