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Criminal Defense, Zealous Advocacy, and Expanded Ethics Dialogue

NCJ Number
Journal of Crime and Justice Volume: 25 Issue: 2 Dated: 2002 Pages: 129-139
J. Eagle Shutt
J. Mitchell Miller
Date Published
11 pages
This author proposes to protect the criminal justice system's integrity through the development of a new ethics literature and creation of an ethics tribunal for defense attorneys.
The issue of zealous advocacy on the part of criminal defense lawyers and the fact that when unrestrained it can lead to destructive consequences is the subject of this article. "Zealous advocacy" is defined as the lawyer's duty to represent a client zealously within the bounds of the law, but these boundaries have not been defined. It is argued that ethically there is more at stake than fair trials for defendants, such as justice, decency, and decorum. The author describes a case that illustrates his point. He also reviews what criminal defense attorneys are taught and not taught, noting that the ethical course is unclear in his case examples and the defense attorneys had no clear controlling authorities for guidance in the defense of their clients. Other than not presenting perjured testimony and false evidence, defense attorneys have few bright-line standards to guide them. To remedy this situation the author proposes the development of literature containing case-by-case ethical standards for criminal defenders and, also, an ex parte ethics tribunal that could review a defense attorney's request on an ethical issue in secret without the knowledge of the prosecution. It is noted that an appellate process would serve as a check on the ethics tribunal's authority. In conclusion, it is intended that the development of ethical precedents can help protect attorneys from sanctions and also aid in rehabilitating the defense bar's reputation. A list of references is provided.