Concerning the ABA Standards for the Prosecution Function: How Is the Job of Prosecutor Different From the Work of Non-Prosecutor Lawyers?
If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate. Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted. A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.
It may seem insignificant to some merely to add two words "sexual orientation" as a pronounced criteria that limits when gays, lesbians, and transgendered individuals are peremptorily excluded from a jury. But, for those who have suffered discriminatory practices, it can serve as a symbolic recognition that gays, lesbians, and transgendered individuals, as a class, have equal rights to judge perpetrators of crimes. It also can offer a true cross-section of society on the jury (Jessica L. West). Ultimately, taking a progressive approach in the Criminal Justice Standards allows for change that can improve prosecutorial and defense practices.The selection of jurors is a hotbed for Supreme Court litigation, with cases prohibiting the use of race" and genders' in excluding jurors on peremptory challenges.8' One also finds many judicial opinions affirming the impropriety of using nationality and ethnicity when striking jurors peremptorily.s In contrast to the courts' recognition of impermissible peremptory juror challenges motivated by one of the above designations, or by religion, the judiciary has given little attention to peremptory challenges premised on sexual orientation, absent a state bar or state constitutional requirement (Ellen S., 1988).
These decisions should be easier, however, when prosecutors serve in an office where the "duty to seek justice" is fairly understood and taken seriously.
Ellen S. Podgor, Criminal Misconduct: Ethical Rule Usage Leads to Regulation of the Legal Profession, 61 TEMP. L. REV. 1323 (1988)
Batson v. Kentucky, 476 U.S. 79,89 (1986).
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 138-42 (1994).
Jessica L. West, 12 Racist Men: Post-Verdict Evidence ofJuror Bias, 27 HARV. J. ON RACIAL & ETHNIC JUST. (forthcoming 201)