6 April 2011

The importance of ethics training is central to the decision of Justice Ginsburg in the US Supreme Court judgment in  Connick v. Thompson published last week.

As in New Zealand, US prosecutors and police have an affirmative duty to provide the defence with information which is material to it – to disclose exculpatory evidence to a defendant.

This is one of the most difficult ethics requirements there is. It goes against the adversarial character of a prosecution.  Acting with integrity means putting the public interest in giving an accused person a fair chance against the public interest in convicting an offender. It can mean losing a case that could otherwise be won.

But as noted by the Court, “The role of the prosecutor is to see that justice is done. It is as much a prosecutors 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.”

Justice Ginsburg commented on the ethics of disclosure noting that  “failure to provide training may be so egregious that, even without notice of prior constitutional violations, the failure could properly be characterized as deliberate indifference to constitutional rights.”

But the majority opinion was that a municipality is not liable where the evidence is of only a single failure to train.

Arguably officials exercising statutory discretions have an analogous responsibility. State servants need to be constantly reminded of the duty to act with integrity. It is not enough to have standards, but staff must be familiar with them, standards must be integrated into the way duties are carried out, and managers must be exemplars of the relevant ethics.

www.supremecourt.gov/opinions/10pdf/09-571.pdf

www.legalethicsforum.com/blog/2011/03/us-supremes-issue-connick-decision-prosecutors-office-has-no-section-1983-liability-for-failure-to-t.html

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