The Ethics of Criminal Justice Judge Jack G. Day
Chief Justice Jack G. Day of the Ohio Court of Appeals (8th District) - professor, trial lawyer. labor arbitrator. author. lecturer. judge . et al - all in one man . Vice-Chairman and Member of Council. ABA Section of Criminal Law . Past-President . National Association of Defense Lawyers in Crimi,.al Cases . Judge Day was one of the principal speakers at the A rkansas Workshop ilIon Standards for Criminal Justice, January 20-21, 1972. These remarks will not be a conventional discussion of honesty and truthfulness . Those virtues will be presumed conclusively to be part of the commitment of every person involved in the administration of criminal justice . Less commitment , of course , should result in total divorcement from the process. I will examine ethics in a more fundamental sense - the sense which means the study of alternate values as they relate to the administration of justice. Three -Legged Stool The three-legged stool concept of criminal justice, is, so far as 1 know, the conception of the present Chief Justice of the United States, developed when he was chairman of the Advisory Committee on the Prosecution and Defense Functions. This conception of cou rse, is one of the main building blocks in the structure of the massive study of the Standards for the Administration of Criminal Justice conducted by the ABA over the past seven or eight years . The idea is that justice, symbolized in the homey metaphor of a stable stool , is achieved best when a competent prosecuti on , defense and bench combine to administer jus tic e. I add one leg to the
PAGE 204
stool路 a professional police force. In the brief time alloted for the develop. men! of the subject, and the elJen shorter time that remains , I shall discuss certain fundamental conditions in my view ethical - necessary if each leg of the slool is to achieve that sturdiness its function requires. In its shortest form the ultimate value, and therefore the ultimate ethical objective, in all our jurisprudence, but especially the criminal. is due process of law . That obvious point , which must permeate our concern from investigation th rough correction , is the touchstone o f the success of our legal system . In another sense the realization of due process is the measure of the very success of our government. For none of the various litmus papers to be applied to governmental achievement are more important than the tests which measure official treatment of dissent, of minorities and of persons charged with c rime . Patently, the judicial system is deeply involved in all three areas. Today, time and the purpose of our gathering allows me on ly to note the first two and pass on to the third.
Two Legs Two legs of the stoo l of criminal justice bear common discussion because in a ll but a few , but very important, respects they bear a parallel relation to the ethical problem . Both the prosecution and defense counsel owe one another and the c o urt candor , deference and strength . The o bligation of candor presents no differences except those that are peculiarly related to the defense right to put the state to its proof and the defendant's right against selfin c rimination . However, in all matters in whi c h the defense has affirmati ve
obligations of proof or in which it volunteers information . its scruple must match that of the prosecution . On its part, of course, the prosecution has a higher duty than simple conviction . The objective is to convict according to law and when that cannot be done acquittal is itself a form of fulfillment of the prosecution role . Deference does not mean weakness. It can be summed up in that somewhat effete phrase " courtroom etiquette " - meaning no more than the mutual courtesy and respect which will satisfy one dignified man in his relations with another. Elements i n Adyocacy Strength is an indispensibJe element in advocacy. Eve ry trial lawyer knows , and we are really discussing trial law ye rs, that there will be times when despite the thunderheads and lightning which may be moving and flashing about the bench or from the other side of the trial table . a good lawyer must at whatever risk to himself do those things necessary to make and save the record . Of course , this must be done care fully to aVOid crossing the line between brave advo cacy and contempt bu t, in any event , done. The bench , and this may be more supplication than statement , if it is to satisfy its duty to the due process o f law , must be patient, strong , brave (a different matter) , courteous , assidi o us and , at all costs, must not allow itself to become jaded. Patience and courtesy are handmaidens which make the difficult task o f lawyers - and in the long run the task of judges too - easier. There is alm o s t no problem in which gratuitous jud icial acerbity will assist reso lution . Courage wherever it is needed at a ll
THE ARKANSAS LAWYER