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NCJ Number: 135754 Find in a Library
Title: Suppression of Evidence as a Remedy for Attorney Misconduct: Shall the Sins of the Attorney Be Visited Upon the Client?
Journal: Albany Law Review  Volume:54  Issue:3/4  Dated:(1990)  Pages:437-478
Author(s): L E Gross
Date Published: 1990
Page Count: 42
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: This article considers, in the context of both criminal and civil proceedings, whether and under what circumstances the exclusionary rule might be applied to deter misconduct by a prosecutor or defense attorney during the course of case processing.
Abstract: Part I addresses misconduct by prosecutors, and Part II examines misconduct by the defense. Incorporated in the analysis of prosecutorial and defense misconduct is an examination of the relationship between misconduct and the sanction. Part III considers whether, in the context of civil proceedings, suppression of wrongfully obtained evidence can be used as a deterrent to misconduct or as a means of preventing a party from being unjustly enriched by attorney unethical conduct. The article also considers whether there is justification for the use of this particular sanction when other sanctions are available. The article concludes that in criminal proceedings, prosecutors should not be allowed to benefit from their own misdeeds. Such behavior must be deterred to ensure the integrity of the criminal justice system and to assure the public that the government is not above the law. Because suppression of evidence can result in lost convictions, which might impede a prosecutor's career advancement, the exclusionary rule may provide the best deterrence for prosecutorial misconduct. When suppression of evidence is used to remedy or deter potential misconduct by criminal defense counsel, there is the possibility that an innocent client may be imprisoned. Since the subsequent recovery of monetary damages is grossly inadequate to compensate for time spent in jail, courts should be cautious about the use of evidence suppression as a remedy for defense misconduct. Contempt of court against the attorney would be a better sanction, since it would not adversely affect the case outcome for the client. 209 footnotes
Main Term(s): Attorney client relations
Index Term(s): Exclusionary rule; Professional misconduct; Rules of evidence
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=135754

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