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Ethical Justice: Applied Issues for Criminal Justice Students and Professionals
Ethical Justice: Applied Issues for Criminal Justice Students and Professionals
Ethical Justice: Applied Issues for Criminal Justice Students and Professionals
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Ethical Justice: Applied Issues for Criminal Justice Students and Professionals

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This textbook was developed from an idiom shared by the authors and contributors alike:  ethics and ethical challenges are generally black and white - not gray.  They are akin to the pregnant woman or the gunshot victim; one cannot be a little pregnant or a little shot. Consequently, professional conduct is either ethical or it is not. 
Unafraid to be the harbingers, Turvey and Crowder set forth the parameters of key ethical issues across the five pillars of the criminal justice system: law enforcement, corrections, courts, forensic science, and academia. It demonstrates how each pillar is dependent upon its professional membership, and also upon the supporting efforts of the other pillars - with respect to both character and culture.
With contributions from case-working experts across the CJ spectrum, this text reveals hard-earned insights into issues that are often absent from textbooks born out of just theory and research. Part 1 examines ethic issues in academia, with chapters on ethics for CJ students, CJ educators, and ethics in CJ research. Part 2 examines ethical issues in law enforcement, with separate chapters on law enforcement administration and criminal investigations. Part 3 examines ethical issues in the forensic services, considering the separate roles of crime lab administration and evidence examination. Part 4 examines ethical issues in the courts, with chapters discussing the prosecution, the defense, and the judiciary. Part 5 examines ethical issues in corrections, separately considering corrections staff and treatment staff in a forensic setting. The text concludes with Part 6, which examines ethical issues in a broad professional sense with respect to professional organizations and whistleblowers.
Ethical Justice: Applied Issues for Criminal Justice Students and Professionals is intended for use as a textbook at the college and university, by undergraduate students enrolled in a program related to any of the CJ professions. It is intended to guide them through the real-world issues that they will encounter in both the classroom and in the professional community. However, it can also serve as an important reference manual for the CJ professional that may work in a community that lacks ethical mentoring or leadership.
  • First of its kind overview of the five pillars of criminal justice: academia, law enforcement, forensic services, courts and corrections
  • Written by practicing criminal justice professionals, from across every pillar
  • Offers a realistic overview of ethical issues confronted by criminals justice students and professionals
  • Examines sensitive subjects often ignored in other criminal justice ethics texts
  • Numerous cases examples in each chapter to facilitate instruction and learning
LanguageEnglish
Release dateJun 7, 2013
ISBN9780124046467
Ethical Justice: Applied Issues for Criminal Justice Students and Professionals
Author

Brent E. Turvey

Brent Turvey, PhD is the author of Criminal Profiling: An Introduction to Behavioral Evidence Analysis, 1st, 2nd, 3rd and 4th Editions (1999, 2002, 2008, 2011); co- author of the Rape Investigation Handbook, 1st and 2nd Editions (2004, 2011), Crime Reconstruction 1st and 2nd Editions (2006, 2011), Forensic Victimology (2008) and Forensic Fraud (2013) - all with Elsevier Science. He hold an MS in Forensic Science and a PhD in Criminology. He is a full partner, Forensic Scientist, Criminal Profiler, and Instructor with Forensic Solutions, LLC, and The Forensic Criminology Institute. Dr. Turvey also maintains a caseload of femicides (e.g., sexual homicides, gender motivated homicides), pre-femicidal violence, trafficking, and human rights cases in Latin America. Many of these are related to drug trafficking and human trafficking. This involves the implementation of the UN Model Protocol for Femicide Investigation in Latin America, with The Forensic Criminology Institute’s Behavioral Science Lab (BSL). In operation since 2019, the BSL collaborates with USAID, The United Nations, and The Attorney Generals Office in Bogota DC, providing international support and training to attorneys , investigators and forensic professionals.

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    Ethical Justice - Brent E. Turvey

    1

    Ethics in the Criminal Justice Professions

    Stan Crowder and Brent E. Turvey

    Legislative enactment has never been, and never will be, a panacea for moral turpitude. It is absurd, and stupid as well, to think that fines and jail sentences can change the character of an individual.

    August Vollmer (1971, p. 81)

    Contents

    Ethics Defined

    Ethics and Morality

    Moral Dilemmas

    Ethical Dilemmas

    Professional Ethics

    Relative Justice

    Legal Justice

    Constitutional Rights

    Due Process

    The Pillars of the Criminal Justice System

    Academia

    Law Enforcement

    Forensic Services

    The Judiciary

    Corrections

    The Character of an Adversarial System

    The Prosecution

    The Defense

    The Value of Professional Ethics in the Criminal Justice System

    The Value of Professional Ethics to Criminal Justice Practitioners

    Employability

    Preparedness

    Trustworthiness

    Resistance to Serious Corruption

    Protection

    Summary

    Key Terms

    Academia     

    The pillar of the criminal justice system comprised of those criminal justice researchers and educators working in colleges, universities, academics, and institutions around the world.

    Adversarial system     A jurisprudential network of laws, rules and procedures characterized by opposing parties who contend against each other for a result favorable to themselves. In such a system, the judge acts as an independent magistrate rather than prosecutor; distinguished from an inquisitorial system (Black, 1990, p. 53).

    Corrections     

    The pillar of the criminal justice system that deals with the probation, incarceration, management, rehabilitation, treatment, parole, and in extreme cases the execution of convicted criminals.

    Criminal justice system     The network of government and private agencies intended to manage accused and convicted criminals.

    Due process     The preservation of federal and state constitutional rights; the rights of citizens as described in these constitutions may not be violated or taken away without strict adherence to the law.

    Ethical dilemma     A type of ethical issue that arises when the available choices and obligations in a specific situation do not allow for an ethical outcome.

    Ethics     

    The specific institutional rules of conduct constructed from morality and other elements of character (e.g., motivation, libido, courage, loyalty, integrity, and empathy); they are, consequently, the result of reflection and deliberation (Ethics Across the Curricula Committee, 2007).

    Forensic services     The pillar of the criminal justice system that deals with the examination and interpretation of evidence – physical, behavioral, and testimonial alike (Turvey and Petherick, 2010).

    Judiciary     

    The pillar of the criminal justice system that deals with the adjudication or criminal defendants to include exoneration, punishment, treatment, and efforts to reform.

    Justice     

    Fair and impartial treatment during the resolution of conflict.

    Law enforcement     The pillar of the criminal justice system that deals with reported crime.

    Legal justice     The result of forging the rights of individuals with the government’s corresponding duty to ensure and protect those rights.

    Moral dilemma     Exists when available choices and obligations do not allow for moral outcomes.

    Morality     

    A significant contributor to the development of ethics and is most commonly associated with individual feelings or beliefs regarding actions.

    Professional ethics     The specific ideals, principles, values, and constraints imposed on practitioners by the mandates of their profession and workplace.

    The purpose of this textbook is to provide an instructional guide for any criminal justice student or professional that needs help identifying, understanding, or resolving ethical issues and dilemmas. To accomplish this, it is necessary to examine the five interdependent pillars of the criminal justice system: academia, law enforcement, forensic services, the courts, and corrections. No matter where in this foundation a professional finds employment, they will depend on or work directly with those within the other supporting pillars. Readers will therefore come to understand the necessity of the different roles and ethical obligations held by each pillar with respect to ensuring that justice is ultimately being served.

    In this chapter, readers will be introduced to the basic concepts necessary for understanding and contextualizing each of the chapters that follow: the concepts of ethics and justice will be defined; the mandates of legal justice will be spelled out; the pillars of the criminal justice system will be distinguished from each other; and the value of ethics to both the criminal justice system and individual professionals will be explained.

    Ethics Defined

    There is a great deal of confusion with respect to ethics in the justice system – including what they actually are, how they should be derived, and their relationship to morality. This occurs when those discussing professional ethics inappropriately conflate philosophy and religion when attempting to understand or explain fundamental issues. For example, the criminal justice literature is rife with publications treating personal morality, religious dogma, and professional ethics as though they are interchangeable constructs. Although often treated as synonymous in common usage, they are quite different.

    Ethics and Morality

    In philosophy, ethics involves the study of individual or group character, which is comprised of many different elements, including variably developed morality, ideals, values, and virtues (Thornton, 2012).¹ Morality, a significant contributor to the development of ethics, is most commonly associated with individual feelings or beliefs regarding actions. This is to say that morality provides a thematic basis for making judgments as to whether actions or choices are considered right, wrong, good, or bad. Ethics are the specific situational rules of conduct constructed from morality and other elements of character (e.g., motivation, libido, courage, loyalty, integrity, and empathy); they are, consequently, the result of reflection and deliberation (Ethics Across the Curricula Committee, 2007). The influence of morality on ethics can be absolute or finite, shifting wildly depending on individual or group dogma.

    For example, groups with a variety of different belief systems consider the act of killing another human being immoral. Consequently, a moral imperative² exists within such groups to refrain from killing of any kind. However, careful deliberation of this imperative, in consideration of related ideals, values, and virtues, has caused some to develop ethical guidelines that permit killing under specific circumstances. In this way killing may be considered generally immoral, but there may also be specific ethical exceptions (e.g., self-defense, time of war, and capital punishment).

    At this point, it is crucial to acknowledge that every belief system (e.g., institutional, political, religious, cultural) has its own set of values, morals, and ideals, with its own subsequent ethical canon. Consider that in some cultures women can drive a car, wear revealing clothes, own property, get an education, and marry or date whomever they prefer. In other cultures, such conduct by a woman is considered immoral; in extreme cases it may even be a violation of religious law. This reality provides that there are no truly universal moral imperatives or obligations: even rape and torture are considered by some to be acceptable, depending on the context (e.g., honor killings, time of war). By the same token, there are also no universally held taboos.

    Moral Dilemmas

    A moral dilemma exists when available choices and obligations do not allow for moral outcomes. In such instances, a choice or an action is anticipated or required, and all of the available alternatives violate some moral obligation. Moral dilemmas are not uncommon when organizations and individuals are working to satisfy competing interests, or when personal morals and professional obligations are directly opposed.

    An example would be a devout Catholic that marries, has children, and later discovers that their spouse is abusing one of them. According to the Catholic Church, marriage is a sacrament and is indissoluble – therefore, a moral obligation exists to repair a failing marriage, especially when children are involved. However, a moral obligation also exists to protect one’s children. Both choices – getting a divorce and remaining with an abusive spouse – are morally unacceptable at best. This moral dilemma is not unique to those with strong religious beliefs and has resulted in some of the most horrific consequences that can be observed in the criminal justice system.

    Notably, the phrase moral dilemma is used throughout the criminal justice literature by those unaware of its actual meaning. In many works, authors use it when referring to immoral or unethical behavior with severe consequences – to the choice that must made between moral and immoral behavior. The choice that exists between moral and immoral behavior does not involve a genuine dilemma – unless the moral path conflicts with some other moral obligation.

    Ethical Dilemmas

    An ethical dilemma is a type of ethical issue that arises when the available choices and obligations in a specific situation do not allow for an ethical outcome. In such instances, a choice or an action is required and all of the available alternatives violate an explicit ethical principle or guideline. This should not be confused with ignorance of what is ethical or with the discomfort that often comes from having to make difficult ethical decisions. It also bears mentioning that ethical dilemmas are essentially unavoidable when working with others that maintain different moral foundations or ethical obligations, or when serving in multiple roles with diverse obligations.

    Ethical dilemmas commonly occur along one of the following themes:

    (1) Truth v. Loyalty: Choosing between maintaining personal integrity or keeping fidelity pledged to others (e.g., friends, family members, co-workers, employers, and organizations).

    (2) Individual v. Group: Choosing between the interests of an individual, or a few, and those of a larger community.

    (3) Immediate v. Future: Choosing between present benefits and those that that are long-term.

    (4) Justice v. Compassion: Choosing between fair and dispassionate application of consequences and the individual need or warrant for charity.

    One example of an ethical dilemma encountered frequently within the criminal justice system involves the necessity of promotion. When a supervisory position (e.g., sergeant or lieutenant) opens in a police agency, the managing supervisor (usually a lieutenant, captain, or chief) has a decision to make: promote based on loyalty; promote based on political promises and necessity; or promote based on integrity, ability, and achievement. Ideally these elements would align themselves in a single candidate making the decision relatively easy. In reality, this does not happen very often – if ever. The ethical choice would seem to be promoting based on integrity, ability, and achievement; however, there can be tremendous external pressure placed on managing supervisors to maintain their loyalty to friends and family, or to fulfill externally mandated diversity quotas, and consequently promote those who have not otherwise earned it. Promoting the unqualified violates any ethical commitments to professionalism and safety; on the other hand, promoting the qualified can result in the violation of ethical obligations to follow orders or remain loyalty. In any profession where diversity hiring is an issue, or where loyalty is considered a sacred and necessary virtue, this dilemma is going to ensue.

    It is worth noting that ethical dilemmas are useful in that they can reveal the need for deeper reflection and deliberation about the consequences of our actions – which is how we are meant to develop ethical rules, principles, and guidelines in the first place. In fact, it is the complexity and specificity of an ethical dilemma that will separate it from a general moral dilemma. This is why those with a more penetrating grasp of ethical issues are able to act with greater preparedness than those without and are often able to identify their best course of action with less difficulty. However, this does not make ethical dilemmas any less demanding, distressing, or painful.

    Professional Ethics

    Professional ethics are the specific ideals, principles, values, and constraints imposed on practitioners by the mandates of their profession and workplace. They are generally expressed as an explicit code of ethical conduct (Davis, 1995). It can be said that a profession without a written, comprehensive, and uncompromising code of ethics is no profession at all, as explained in Kleinig (1996) and Sullivan (1977, p. 280):

    Without question, a code of ethics is essential in a profession. Without it, a profession could not exist. Moreover, the rules and regulations selected must reach the highest standards. There must be no opportunity for compromise. Professional ethics dictates the application of such absolutes as always and never.

    Professional codes of ethics include three different kinds of directives: ideals, principles, and requirements (Davis, 1995). Ideals are professional aspirations and essentially impossible to achieve with perfection or consistency, such as those related to maintaining unsullied character, showing respect, maintaining dignity, or seeking justice. Professionals are expected to try, but they are also allowed to fail so long as it is not part of an intentional subversive effort. Principles are specific values or commitments, such as an organizational commitment to a profession, its members, a particular goal, or a particular school of thought; or member commitments to impartiality and integrity. As with ideals, professionals are expected to maintain principles, but they may unintentionally falter without being severely punished – so long as they acknowledge their failings and seek remedy. Requirements are mandatory rules and obligations that must be followed to the letter. Far from being an ideal or a principle, a requirement is explicit and cannot be negotiated – such as forbidding members from misrepresenting their credentials or mandatory expulsion for members convicted of a felony charge. Unfortunately, professional codes of ethics are often written in such a fashion as to confuse these directives, making some difficult to interpret, abide, and enforce (Davis, 1995; Kleinig, 1996).

    Relative Justice

    Justice may be generally defined as fair and impartial treatment during the resolution of conflict. It is, ultimately, an ideal with significant ramifications for citizens and their government alike. Despite this seemingly benign definition, not everyone agrees on how to define what is considered fair and impartial treatment, or its proper administration. It is a relative value, as explained in Leonard (1971, p. 3):

    Justice, as an ideal, is the keystone in the arch of social control. It occupies the throne in the whole arena of human affairs. Although its role is overwhelming to contemplate, justice does not lend itself readily to definition. It’s principal characteristic is flux, with constant reorientation and readjustment to the growth of man and his expanding social horizons.

    For some, fair and impartial means moral; as already discussed, this is subjective at best given the variability of morality from person to person. For others, fair and impartial means equal treatment; they believe that everyone should receive the same consideration regardless of their circumstances. Still for others, fair and impartial means that each person gets the justice that they earn, or fail to earn, by their actions. Ultimately, every group, and every person within that group, has his/her own uniquely formed view of what justice is and how it is best achieved.

    These differing views have resulted in the ongoing development of multiple and competing models of justice. The most common model of justice is referred to as retributive or corrective, focusing on the administration of punishments that are proportionate to the nature and severity of any wrongs committed. Compensatory and restorative models, on the other hand, focus on making victims whole again, and reintegrating offenders back into society. Finally, there is the distributive model, which focuses on the equitable distribution of benefits and burdens across all members of society equally.³ The utility of any approach to justice is measured by the desired outcome, and again this varies from person to person. Those seeking vengeance are unlikely to have use for restorative justice. Similarly, those seeking compensation are unlikely to be satisfied only by offender punishment.

    Invariably, conflict and the need for justice cause tension between people with differing views. When they must work to resolve disputes, they can naturally be expected to disagree as to whether and when justice has been served. Often, the only thing unifying them under these circumstances is the rule of law. This necessitates a formal system of legal and procedural rules and doctrines, according to which it is administered (Leonard, 1971, p. 3). Hence the need for legal justice.

    Legal Justice

    Legal justice is the result of forging the rights of individuals with the government’s corresponding duty to ensure and protect those rights. This is also referred to as due process. Legal justice is intended to be the proper administration of due process and the law, with the fair and impartial treatment of all individuals by agents of the justice system. Lady Justice, a Greco-Roman blend of the goddesses of justice, is commonly used to symbolize its ideals. She holds the balanced scales of truth of fairness in her right hand and a double-edged sword in her left that is never sheathed. She is also blindfolded, representing the necessity for ruling dispassionately – without being influenced by personal feelings or political preferences.

    Constitutional Rights

    The US Constitution contains Amendments that establish the rights of its citizens, the precise meaning of which are a matter of continual public debate and legal re-interpretation. These include, but are in no way limited to, freedom of religion and freedom of the press (First Amendment); the right to keep and bear arms (Second Amendment); freedom from unreasonable searches and seizures without probable cause (Fourth Amendment); the right to adequate legal representation, a speedy and public trial, by an impartial jury, and to confront of any witness (Sixth Amendment); freedom from excessive fines and cruel and unusual punishments (Eighth Amendment); and the right to vote (the 15th, 19th, and 26th Amendments).

    In addition, the Fifth and 14th Amendments contain what are referred to as due process clauses – in that they specifically guarantee citizens the right to due process. The Fifth Amendment states:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    The 14th Amendment further states:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    These and other constitutional rights are guaranteed to all citizens. Government is crafted from the citizenry and is intended to serve them by first providing and then protecting these rights, as discussed in Kleinig (1996, p. 14): the chief end of government is the protection of individual life, liberty, and property…. The right to government protection against invasions of life, liberty, and property has been reinterpreted to include the government securement or provision of what will enable those rights to be enjoyed, supplemented by other social, political, and welfare rights. Any government or government agent that does not provide for and protect the rights of its citizens is in violation of due process.

    Due Process

    Due process refers to the preservation of federal and state constitutional rights; the rights of citizens as described in these constitutions may not be violated or taken away without strict adherence to the law. It is central to what justice is and means within any legal system. Due process is achieved only when those in the justice system both understand and follow the laws about when and how individual rights can be infringed. When those laws are not followed, individual’s rights are infringed and due process is violated. As we will learn, due process violations can result in severe consequences for those responsible.

    As explained in Chapman and McConnell (2012), there are two different interpretations of due process (p. 1676):

    Some argue that due process meant nothing more than judicial procedure. It therefore applied to the courts and, perhaps, to the executive with respect to prosecution and the enforcement of court judgments. Under this reading, due process did not apply to the legislature. Others contend that due process of law entailed judicial procedure and natural law norms such as reasonableness, justice, or fairness

    In other words, there are those of the opinion that due process requires simply following the letter of legal procedure as written. Others, however, argue that due process has an underlying set of moral requirements that are equally inviolate. For example, Black’s Law Dictionary explains that due process requires an underlying theme of fairness (Black, 1990, p. 501): Embodied in the due process concept are the basic rights of a defendant in criminal proceedings and the requisites for a fair trial.

    Regardless of how one interprets the concept of due process, its establishment and interpretation are not the role of the executive branch of government, as explained in Chapman and McConnell (2012, p. 1681):

    The due process and law-of-the-land clauses of the American state and federal constitutions originate in Magna Charta and the English customary constitution. This is uncontroversial. What commentators have underemphasized is that due process has from the beginning been bound up with the division of the authority to deprive subjects of life, liberty, or property between independent political institutions. In modern parlance, due process has always been the insistence that the executive – the branch of government that wields force against the people – deprive persons of rights only in accordance with settled rules independent of executive will, in accordance with a judgment by an independent magistrate.

    To be clear, the history of due process suggests that the executive branch (e.g., law enforcement) is meant to have no part in deciding what due process entails – otherwise it will inevitably be unbalanced in their favor. The precise elements of due process, and the rights being protected, must be established by the judiciary, legislated by congress, and then only enforced by the executive.

    Due process and its constitutional origins combine to establish a presumptive requirement for those who seek employment in the criminal justice system at any level – to read and understand not only the US Constitution, but also any subsequent legal decisions that affect its interpretation. Any professional that does not fully comprehend or support the US Constitution, along with the individual rights and due process requirements that it provides all citizens, will continually be at odds with the moral and ethical requirements of working in the criminal justice system. Failure to take this obligation seriously, or supplanting it with personal notions of morality, has been the source of much avoidable injustice.

    Legal justice is the only model of justice that unifies all of the citizens within a given region. This remains true despite whatever personal or professional definitions of justice the citizenry may ascribe to. Its value to a stable society is therefore tremendous. However, it is not an effective substitute for the good character of individuals, as laws and rules of conduct cannot make those with poor character abide (Vollmer, 1971). This lesson will repeat itself throughout this text.

    The Pillars of the Criminal Justice System

    The criminal justice system is the network of government and private agencies intended to manage accused and convicted criminals. It is adversarial in nature. In this section, we will introduce the pillars of the criminal justice system; discuss its adversarial nature and character; and explain the subsequent necessity for clearly defined professional ethics amongst its operatives.

    The criminal justice system is frequently described as being composed of agencies responsible for enforcing criminal laws, including legislatures, police, courts, and corrections (Reid, 2003, p. 355). A similar portrayal is offered in Sullivan (1977, p. 157): "The general view of criminal justice reflects a system of three separately organized functions: the police, the courts, and corrections. Each has a distinct role, yet they are interrelated." These and similar explanations, while generally accurate and representative of the literature, are prosecution oriented. As such, they fail to account for the full balance of the adversarial requirements necessary for achieving legal justice.

    A prosecutorial point of view dominates the criminal justice landscape. Consequently, many texts and courses on the subject have not, historically, acknowledged the value of the many non-law enforcement and non-prosecutorial components of the criminal justice system. In some instances, these elements have been neglected entirely. That is to say, the literature tends to gloss over, or ignore, the necessary roles fulfilled by academia, the defense community, and private or independent forensic examiners working in the criminal justice system. This leaves students uninformed and unprepared.

    In reality, the modern criminal justice system consists of the following major interrelated and interdependent pillars: academia, law enforcement, forensic services, the judiciary, and corrections.

    Academia

    Academia is the pillar of the criminal justice system comprised of those criminal justice researchers and educators working in colleges, universities, academies, and institutions around the world – anywhere that criminal justice professionals seek information, knowledge, formal education, or specific training. These researchers and educators combine to form a vital support that advises, informs, educates, and trains those employed by or seeking employment within the criminal justice system. At their best, they provide coordinated knowledge and structured learning to those who seek it, often to fit the needs of a particular agency, profession, or community. Although disorganized in many circles, and routinely neglected, this pillar has been and remains essential to the professional development and overall effectiveness of those employed in the criminal justice system (Morn, 1995; Vollmer, 1971).⁵

    Law Enforcement

    Law enforcement is the pillar of the criminal justice system that deals with reported crime. Law enforcement agencies are intended to enforce the law – to ensure that citizens act lawfully and to investigate the nature and extent of unlawful acts (Vollmer, 1971). In this capacity they serve as peace officers, preventing or deterring crime and generally working to keep the peace (see, generally, Kleinig, 1996). However, they are also obligated to investigate any criminal complaints and establish the events that actually caused it to made in the first place (Savino and Turvey, 2011). When the agents of law enforcement believe a crime has been committed, they are obligated to investigate, identify and arrest available suspects. In some cases this will also involve the recognition, collection, storage, and transportation of physical evidence by crime scene investigators. As explained in Sullivan (1977, p. 149):

    It is the job of the police to enforce the law. Thus, officers must remember that they are primarily fact-finders for their department and have no authority or control over the judicial or legislative branches of government. If the police effectively enforce the law, they have done all that is expected.

    Law enforcement officers and investigators work for government agencies as dictated by jurisdiction and statute, to include federal, state, county, and municipal (e.g., city, village) authorities, and are supported by a variety of civilian personnel in various administrative and specialist capacities.

    Forensic Services

    A number of essential forensic services form the pillar of the criminal justice system that deals with the examination and interpretation of evidence – physical, behavioral, and testimonial etc. (Turvey and Petherick, 2010). Government-employed analysts, technicians, criminalists, pathologists, and forensic mental health experts perform a wide variety of forensic services on behalf of the state, generally for the police and prosecution. In the United States, however, there is also a community of privately employed independent forensic examiners. These private sector professionals are regularly engaged to perform examinations for the prosecution and the defense alike. When utilized, they allow for the necessary counterbalance required by an adversarial system.

    The availability of forensic science, technology, and expertise is a sore issue within the justice system, as these are scarce resources at best. In most jurisdictions, private labs are limited or non-existent. Consequently, attorneys on both sides may be forced by geographic and budgetary constraints to rely on variably qualified government-employed analysts for the bulk of examinations and interpretations. Such circumstances are rife with ethical dilemmas. It is also fair to say that the lack of available government services, private practitioners, and related funds for either has caused serious case backlogs, delays, and even miscarriages of justice.

    The Judiciary

    The judiciary is the pillar of the criminal justice system that deals with the adjudication of criminal defendants, to include exoneration, punishment, treatment and efforts to reform. As explained in Black’s Law Dictionary (Black, 1990) it is the role of the judiciary to interpret, construe, apply, and generally administer and enforce the laws (p. 847). A short list of those involved in the judiciary includes government prosecutors and public defenders, private defense attorneys, magistrates, judges, investigators for the prosecution, investigators for the defense, investigators for the court, paralegals, court reporters, court clerks, bailiffs, and the juries (drawn from the local citizenry). Each has a specific duty that is explicitly decreed and governed by the law – perversions of which result in violations of due process.⁸

    Corrections

    Corrections is the pillar of the criminal justice system that deals with the probation, incarceration, management, rehabilitation, treatment, parole, and in extreme cases the execution of convicted criminals. Many law enforcement agencies and courthouses have on-site jail facilities to enable short-term incarceration of offenders involved in lesser crimes, or to accommodate the local court appointments of felons visiting from other correctional institutions. However, federal, state, and county penitentiaries are designed to accommodate the long-term sentences of convicted felons. Additionally, there are hospitals outside of correctional institutions that have forensic units providing court mandated mental evaluations, treatment, and defendant residency. Some of these institutions are government owned and operated (county, state, and federal), whereas others are privately contracted.

    A short list of those professionals involved in corrections includes probation officers, corrections officers, corrections investigators, corrections counselors, parole officers, intelligence officers, social workers, forensic psychologists, forensic psychiatrists, and the members of various parole boards.

    The Character of an Adversarial System

    In an adversarial system, criminal defendants are entitled to an adequate defense and due process of law, while the burden of proving guilt is on the state or government (i.e., the prosecution). Such systems are grounded firmly in the principle that defendants are presumed innocent until proven guilty. Consequently, there are always at least two sides in each criminal dispute: a prosecution representing the government and its citizens, and a defense representing the accused. As defined in Black’s Law Dictionary (Black, 1990, p. 53):

    [An adversary system is a] jurisprudential network of laws, rules and procedures characterized by opposing parties who contend against each other for a result favorable to themselves. In such a system, the judge acts as an independent magistrate rather than prosecutor; distinguished from an inquisitorial system.

    Ultimately, each side of this legal dispute works to convince a judge or a jury that its position is the most correct – ostensibly within a set of specific rules for conduct. In other words, each side must avoid conduct that is illegal or unethical when making their case.

    The Prosecution

    In the United States, attorneys for the prosecution work exclusively for the government at the city, county, state, or federal level. They are charged with seeking the truth regarding criminal matters on behalf of the citizenry, and work the benefit of law enforcement resources and personnel from both state and federal agencies. Unfortunately, prosecutors are often elected, appointed, promoted, or otherwise advanced based on political considerations or their conviction rate. This can cause some to be less interested in truth seeking and more interested in what they can prove in court to obtain a politically desirable legal outcome.¹⁰

    The state has the greater burden of proof and must prove a defendant’s guilt beyond a reasonable doubt. This means that before a defendant can be found guilty of any crime, the state must prove every element of that crime and also that the defendant was the person responsible. The reasonable doubt standard is the matter of much law and debate, the ethical application of which will be discussed throughout Part 4 of this work: The Courts.

    The Defense

    Attorneys for the defense are not necessarily interested in the truth, but rather are ethically bound to zealously advocate for the best interests of the accused – their client. Some defense attorneys work for the government as county, state, or federal public defenders, while others work in private practice. Defendants with the financial means may hire a private attorney. However, doing so can be prohibitively expensive. Indigent defendants, being unable to afford private counsel, are represented by a public defender. In states or counties without a dedicated public defender system, the court appoints legal representatives to indigent defendants from a list of available local attorneys, referred to as appointed counsel. The defense rarely enjoys the same resources, experts, and funding available to prosecutors.¹¹

    The defense is not required to prove innocence in an adversarial justice system. In fact, the defense is not required to prove or disprove anything. The defense need only demonstrate that there is a reasonable doubt with respect to the prosecution’s theories in order to prevail. The limited burden of proof required by the defense is founded in the right to be presumed innocent until convicted in a court of law. The fact that a person has been arrested and put on trial may not be considered as evidence of guilt, despite any personal beliefs to the contrary.¹²

    If convicted of a serious felony, a defendant is further entitled to state and federal appeals that can be based on demonstrable errors and misconduct during trial; ineffective assistance by defense counsel; lack of evidence sufficient to support a conviction; newly discovered evidence; and actual innocence. It is fair to say that any professional that does not abide these defense entitlements causes harm to the justice system by participating in it on any level – and should, in good faith, seek employment elsewhere.

    The Value of Professional Ethics in the Criminal Justice System

    Legal justice, as we have shown, requires professionals operating at the highest level of awareness, integrity, and accountability. Professional ethics help to provide the mechanism for all of these. Therefore, the value of professional ethics to the criminal justice system cannot be overstated. It may even be argued that without sincere professional ethics there can be no legal justice.

    As discussed in the Preface,¹³ the criminal justice system has a trustworthy character requirement. This requirement exists because all of the tasks performed in every branch of the criminal justice system are ultimately in service of, and under the scrutiny of, an agent of the court. Every professional report and statement that is generated will eventually be considered by the judiciary, or its agents, as legal decisions are being made. Routinely, these must also be made under penalty of perjury. Work product from all criminal justice professionals must therefore meet the high standards of integrity that the court requires, without exaggeration or

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