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The Ethical Dilemmas in Law

Introduction

Available scholarship demonstrates that investigators and prosecutors are central to cases involving elected or appointed government officials who engage in criminal activities with the view to obtaining a benefit or avoiding a burden (Pollock, 2011). However, these professionals are faced with a multiplicity of ethical dilemmas in the discharge of their duties, particularly in their attempt to serve the public interest and protect individual rights (Shaver, 2012).

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The present paper illuminates some of the ethical dilemmas presented to investigators and prosecutors involved in government crime and public corruption, in addition to debating some relevant ethical actions that should have been taken to deal with the dilemmas.

Description of Ethical Dilemmas

Pollock (2009) notes that ethical dilemmas in criminal law usually involve “courtroom behavior, perjury, conflicts of interest, use of the media, investigation efforts, use of immunity, discovery and the sharing of evidence, relationships with opposing attorneys, and plea bargaining” (p. 239). Consequently, the ethical dilemmas discussed in this paper include the issue of plea bargaining as well as the use of the media by investigators and prosecutors during the trial of individuals involved in government crime and public corruption.

In plea bargaining, the ethical issue revolves around the prosecutor’s sweeping discretionary power not only to define the crime to which the defendant will plead but also make sentencing recommendations, hence effectively deciding on the range of punishment to which the defendant will be subjected (Shaver, 2012).

In the use of the media, it is reported that the likelihood that targets of a government crime or public corruption investigation will attempt to argue their innocence in mainstream media outlets by condemning the investigators and prosecutors raises a pertinent ethical issue regarding whether there are any circumstances when an investigator or a prosecutor should also be permitted to make public announcements or remarks about their investigation (Pollock, 2009).

Illustration of the Ethical Dilemmas with Examples & Debate

The public corruption case involving Kwame Killpatrick, the former mayor of Detroit, is used to illustrate the ethical dilemma of plea bargaining. The former mayor was in 2013 sentenced to a 28-year jail term for his active role in an extensive racketeering conspiracy that included extortion, bribery, and fraud while in public office; however, earlier in 2008, the mayor had turned down a plea bargaining deal in which he was asked to resign in exchange of the prosecution’s dropping one of the two public corruption charges facing him then (Pollock, 2009; Federal Bureau of Investigation, 2013).

In this case, the investigators and prosecutors could have taken the action of minimizing the defendant’s liability in exchange for a plea and total cooperation in the case to assist the prosecution to develop provable arguments against individuals that are directly involved in the corruption or criminal activity (Pollock, 2009).

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The advantages of such a decision include minimizing case backlogs, increasing efficiency in dealing with complex prosecutions, as well as capacity for greater flexibility in sentencing by facilitating the prosecution and defense to develop more individualized sentences via the informal negotiation process.

The disadvantages of such an action, however, involve possible, adverse, and unintended ramifications that may arise if plea bargaining is introduced, such as disparate sentencing, punishing defendants who go to trial, infringements of defendants’ rights, promoting coercion of confessions to achieve convictions, as well as contributing towards an adverse public opinion of the criminal justice system (Alkon & Dion, 2014).

The Watergate Scandal case is used to illustrate the ethical dilemma related to the use of the media. In this high-ranking public corruption case, the many legal standards and guidelines intended to prevent investigators and prosecutors from divulging particulars of an investigation (e.g., The ABA Standards Relating to Fair Trial and Free Press) were of minimal practical assistance not only due to the complex nature and scope of the case but also because of intense media scrutiny (Pollock, 2009).

In the Watergate Scandal case, the Special Prosecutor took the action to hire a “public affairs officer” charged with the responsibility of handling the office’s relations with the mainstream media. Many of the experienced prosecutors were fearful that the establishment of a permanent liaison with the mainstream media would legitimize superfluous media-prosecutor communication and ultimately lead to leaks, not to mention the fear that the prosecution would be blamed for information about the investigation that appeared in the media even if it was not the source of such information (Pollock, 2009).

Despite the perceived disadvantages related to the establishment of a permanent liaison office with the media, the office became of critical importance in dealing with press queries relating to the case, while the Special Prosecutor concentrated on his dual responsibilities to seek justice and to safeguard the defendants’ rights to a fair trial.

Lastly, the prosecution chose to engage in negative guidance, with the view to deterring publication of extremely prejudicial charges when facts known to the Special Prosecutor and other prosecutors in the Watergate case appeared to refute the charges (Pollock, 2009).

The main advantage for using negative guidance is that it serves the public interests well, especially in preventing the dissemination of false and damaging information about a particular case; however, it technically goes against the ABA standards prohibiting the dissemination of information by the prosecution or subordinates’ if there is the justifiable probability that such dissemination may indeed interfere with a fair trial or otherwise prejudice the due administration of justice.

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Conclusion

Overall, it is evident that, although investigators and prosecutors are often faced with the discussed ethical dilemmas, they can always develop tangible actions to go around them. The Strengths and weaknesses of such actions are of critical importance in dealing with ethical issues.

References

Alkon, C., & Dion, E. (2014). Introducing plea bargaining into post-conflict legal systems. Web.

Federal Bureau of Investigation. (2013). Public corruption: Inside the Kwame Kilpatrick case. Web.

Polllock, J. (2011). Ethical dilemmas and decisions in criminal justice. Belmont, CA: Wadsworth Cengage Learning.

Shaver, A. (2012). Ethical lapses in criminal plea bargaining: What can be done about them. Journal of the Legal Profession, 36(2), pp. 559-570.

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