Tuesday, February 28, 2012

Bazelon on Legal Education and Prosecutorial Behavior

Lara Bazelon has just published an article called "Hard Lessons: The Role of Law Schools in Addressing Prosecutorial Misconduct," 16 J. Berkeley Crim. Law 388 (2011). (Although it is dated 2011, it just hit the stands, as it were.) Here is the link: http://www.bjcl.org/current/16_2/bazelon_formatted.pdf

Here is the abstract:

This article approaches prosecutorial misconduct from a pedagogical perspective by exploring the ways in which law school clinicians can teach their students how to confront the problem proactively and in-the-moment, with an eye toward reducing its rate of occurrence and blunting its corrosive effect. Prosecutorial misconduct is a serious problem that strikes at the heart of a criminal defendant’s constitutional right to a fair trial. More broadly, it has the potential to impact the integrity of the criminal justice system as a whole. Educating law school students in criminal clinics about this issue before they become prosecutors and criminal defense attorneys serves three important goals. First, such instruction can act as preventative medicine by
reducing the likelihood that future prosecutors will step over the line out of ignorance of the applicable case law and court rules or out of a misplaced desire to win at all costs. Second, it enables future defense counsel to develop litigation techniques designed to prevent the problem from occurring in the first instance. Third, it can prepare defense counsel to recognize prosecutorial misconduct that proves unpreventable so that she is able to respond effectively
in-the-moment rather than belatedly, after the harm has been done.
The blended learning approach that is the signature pedagogy of the clinical classroom is well-suited to addressing prosecutorial misconduct because it provides an opportunity for students to engage in a frank and thoughtful dissection of the legal and ethical issues that are inextricably bound up with it. The model I propose combines instruction in black letter law, ethics, and skills acquisition. It also seeks to have clinicians model the process of analyzing and responding to prosecutorial misconduct using examples from their real world experiences. The approach is geared toward enabling students to think critically about their roles and responsibilities as future prosecutors and defense attorneys as they develop a familiarity with the relevant legal and
ethical rules that will govern their conduct. This kind of training, with its emphasis on the real-world implications of doctrine and the importance of questioning, and reflecting upon, what it means to be a zealous advocate, is designed to foster the development of sound professional judgment before students enter the whirlwind of practice.

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