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Wednesday, February 20, 2008

Evidence And Ethics 16: Professor Mosteller's The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure To "Do Justice."

The contribution of Duke University School of Law Professor Robert P. Mosteller to the Evidence and Ethics Sympoisum is his article, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice."  In the article, Professor Mosteller focuses on the infamous Duke lacrosse case, which led to the disbarment of Durham County District Attorney Mike Nifong.  And yet, the focus of the article is not on the actual ethical rulings resulting from the pernicious conduct of Nifong, but instead on the fact that no charge was brought against him for failing to "do justice."  Mosteller notes that the absence of such a charge was because Model Rule 3.8(a) is woefully inadequate and largely unenforceable and thus contends that a better way to protect the innocent from unsubstantiated prosecutions would be to create guidelines that improve accuracy in identification and to turn those guidelines into legally enforceable standards.

In Parts I and II, Mosteller sets out all of the relevant facts of the Duke lacrosse case and lays bare the various and sundry ethical violations committed by Nifong, including (1) violations based upon improper pretrial publicity and (2) violations based upon the failure to disclose exculpatory DNA evidence.

In Part III, however, Mosteller notes that while a fundamental ethical duty of prosecutors is to "do justice," no charges were brought against Mosteller based upon Rule 3.8(a) of the North Carolina Revised Rules of Professional Conduct (taken directly from Model Rule 3.8(a)), which states that “[t]he prosecutor in a criminal case [shall] . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”  He contends that despite Nifong violating the "do justice" precept in "the most fundamental way," it is far from clear that Nifong violated Rule 3.8(a) because, inter alia, (1) the Rule requires only that the prosecution be supported by probable cause, (2) the Rule sets a very high standard on the mental element, imposing a duty to refrain from prosecuting only when the prosecutor “knows” that probable cause is lacking, and (3) the Rule imposes no duty of thorough inquiry into the facts and no responsibility of independent investigation. 

Because Mosteller finds Rule 3.8(a) to be toothless and thus largely worthless in protecting the innocent from unsubstantiated prosecutions, in Part IV, he turns to an alternate solution:  changing the way we allow police to conduct identifications.  Mosteller notes that current due process doctrine affords  extremely weak protection to criminal accuseds because it merely prevents police from being suggestive during the identification process.  Mosteller notes, however, that while suggestiveness was a problem in the "all suspects" photograph identification procedure used in the Duke lacrosse case, the larger problem was unreliability.  Mosteller then looks at how the innocence movement began changing the focus from suggestiveness to a focus "on misidentifications and on accuracy in identification procedures." 

This movement has led to researchers generally "settling on six recommendations: (1) only one suspect should be in each lineup or photo array; (2) the suspect should not “stand out”; (3) the witness should be cautioned that the perpetrator might not be in the lineup or array; (4) those in the lineup or array should be displayed sequentially rather than simultaneously; (5) the person who administers the identification procedure should not know whether the suspect is in the lineup or array and certainly should be ignorant of the identity of the suspect (“double-blind testing”); and (6) a statement regarding the witness's confidence should be collected at the time any identification is made."

In Part V, Mosteller argues that states should adopt guidelines in accordance with these recommendations but that they must be made into legally enforceable standards.  He then notes that North Carolina did just that in the wake of (and in response to) the Nifong case.  He praises this move as at least a good first step but wonders whether the remedies in the North Carolina legislation are specific enough and go far enough.  As an advocate of shifting in the way we treat identifications in criminal cases, I found myself agreeing with much of Mosteller's article, and I hope that many state legislatures soon follow suit.

I wrote Professor Mosteller about his article, and he responded,

"In about a week, a related article will be published by the George Mason Law Review, "Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong:  The Critical Importance of Full Open-File Discovery," 15 Geo. Mason L. Rev. ___ (forthcoming 2008).  It deals with two other cases in North Carolina and the development of the full open-file discovery law, which was quite important to the proper outcome in the Duke Lacrosse Case."

That article is now available on the George Mason Law Review website

-CM

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