An Unholy Alliance: the Ex Parte Relationship Between the Judge and the Prosecutor

• Publication year: 2021

79 Nebraska L. Rev. 251. An Unholy Alliance: The Ex Parte Relationship Between the Judge and the Prosecutor

251

Roberta K. Flowers*

An Unholy Alliance: The Ex Parte Relationship Between the Judge and the Prosecutor(fn1)(

TABLE OF CONTENTS

`Equal and exact justice to all men, of whatever state or persuasion, religiousor political; peace, commerce and honest friendship with all nations, entangling alliances with none.'(fn2)

I. Introduction......................................... 252
II. The Adversary System and the Necessity of a
Neutral Independent Court............................ 254
A. History of the Adversary System................... 254

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B. Principals of the Adversary System................ 256
1. Contentious Presentation of the Evidence....... 256
2. A Structured Set of Rules of Presentation...... 259
3. An Impartial Tribunal Will Decide the Outcome.. 261
C. Adversary System Distinguished From the
Inquisitory System................................. 264
III. The Relationship Between the Judge and Prosecutor.... 265
A. An Intimate Relationship.......................... 265
B. Reasons for the
Familiarity of the Relationship................... 268
C. Problems With Too
Close of a Relationship........................... 270
IV. Ex Parte Communications:
The Antithesis of the Adversary System............... 273
A. Definition of Improper Ex Parte Communications.... 273
B. Permissible Ex Parte Communications............... 277
1. Communications Permitted by Law................ 278
2. Communications Not on the Merits............... 283
C. Impact on the Adversary System.................... 287
1. Only One Side of the Case is Presented......... 287
2. Rules Not Enforced or Enforceable.............. 288
3. The Impartiality of the Judge is Impaired...... 288
V. Eliminating the Team Mentality....................... 289
A. Controlling the Relationship...................... 290
B. All Communications Between the Judge and
Prosecutor Should Occur in the Courtroom.......... 291
VI. Conclusion........................................... 292

I. INTRODUCTION

In his first inaugural address, Thomas Jefferson suggested that the avoidance of entangling alliances was necessary for the success of the young nation.(fn3) For the criminal prosecutor and the trial judge, avoiding an entangling alliance is essential to the functioning of the adversary system. The adversary system(fn4) is based on the `philosophy that insists on keeping the function of the advocate, on the one hand,

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from that of the judge on the other hand.'(fn5) The American justice system, which utilizes the adversary system, is premised on the assumption that truth will emerge from two advocates presenting their version of the facts in a structured format to a neutral and detached decision-maker.(fn6) The advocates in the adversary system bear the sole responsibility for the presentation of the facts. The decision-maker must sit as a passive participant to the proceeding and decide the truth based on the facts presented in court. The decision-maker has no role in the discovery, investigation, or presentation of the case. The adversary system is anchored on the principles that if the decisionmaker becomes actively involved in the presentation of the facts, she(fn7) risks becoming biased toward one version or the other.(fn8) Additionally, the presence of a passive decision-maker appears more neutral than a judge,(fn9) who is actively involved in the questioning and presentation.(fn10)

Although the role of the prosecutor in the adversary system resembles in many respects that of a zealous advocate,(fn11) the nature of the prosecutor's practice requires constant contact and cooperation with the trial judge. This constant contact causes the relationship to take on characteristics that are different from the relationship between the judge and other lawyers. The creation of this interdependent relationship may produce a `team spirit' between the court and prosecutor, which is counter to the fundamental philosophy of the adversary system.(fn12)

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One of the by-products of the cooperative relationship between a prosecutor and trial judge is the occurrence of impermissible ex parte communications.(fn13) Improper ex parte communications occur when one side of a controversy is able to discuss or influence the decision-maker's opinion and thereby receive a tactical or substantive advantage. Because ex parte communications allow the judge to make decisions before hearing both sides of the case, and may require her to undertake the job of an advocate, improper discussions obstruct the proper functioning of the adversary system.(fn14)

This Article seeks to explain the relationship between the prosecutor and the trial judge and how that relationship must be closely monitored to avoid impeding the successful application of the adversary process. Part I explains the underlying premises of the adversary system.(fn15) Part II describes the nature of the relationship between the prosecutor and the trial judge and how that relationship may impact the adversary process.(fn16) Part III discusses improper ex parte communications as the antithesis of the adversary system.(fn17) Finally, Part IV suggests safeguards that can help avoid the creation of the `team approach' to prosecution.(fn18)

II. THE ADVERSARY SYSTEM AND THE NECESSITY OF A NEUTRAL INDEPENDENT COURT

A. History of the Adversary System

The adversary system is as integral a part of our American heritage as capitalism and sporting competitions.(fn19) Although the Constitution does not mention the existence or creation of the adversary

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process,(fn20) the adversary system has been the primary method of dispute resolution in America since the beginning of the republic.(fn21) The courts have routinely mentioned the need for adherence to an adversary process.(fn22) One commentator noted that the adversary process is `so basic that the Constitution does not even mention it.'(fn23)

The adversary method of dispute resolution traces its origin to three methods of trial present in medieval Europe.(fn24) These methods were trial by battle, trial by ordeal, and wager of law.(fn25) Trial by battle, which was brought to England by William the Conqueror, required the accused to fight with the accuser.(fn26) The underlying belief was that `[h]eaven would give the victory to him who was in the right.'(fn27) Battle by ordeal resembled the trial by battle in that it invoked heavenly judgment.(fn28) In the battle by ordeal, the litigant, after taking an oath that his cause was just, would subject himself to physical torture that might include carrying a hot bar, placing his arm in boiling water, or being totally immersed in water.(fn29) If the litigant survived the ordeal then judgment was entered in his favor. Finally, wager of law was a method of establishing the justness of the litigant's cause by measuring his standing in the community. The litigant would produce a certain number of other people from the community who would join him in his oath as to the justness of his cause. Depending on how many people he could get to join him, his cause would be deemed proven.(fn30)

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Although each of these methods used a limited amount of evidence, each resembled the present adversary system in two important ways. Each of these methods required active participation by the advocates or parties and a limited participation by the judge.(fn31) The judge's participation in these early forms of trial was limited to administering the oath to the litigants and then deciding which method of trial would be utilized in the case. Much like today's jurist, his medieval counterpart did not take part in the actual combat, but merely set the ground rules for the contest and then declared the judgment.(fn32)

B. Principals of the Adversary System

The adversary system(fn33) of today is premised on three basic principles. First, the system requires a dispute between two or more parties, who will themselves or through zealous advocates present their view of the dispute. Second, the facts will be presented in a structured format. Finally, the system requires that a neutral and passive deci-sion-maker render the ultimate judgment.

1.Contentious Presentation of the Evidence

The basic premise of the system is that at least two individuals have a factual dispute upon which they cannot agree.(fn34) Therefore,

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they must turn to a third party for resolution.(fn35) The assumption is that each party believes its version of the facts to be correct, and are therefore unable to resolve the issue. This premise requires individuals to `choose sides,' to take a position for the adversary process to be necessary. The entire process calls for the contentious presentation of evidence from beginning to end.(fn36) The rules of the process may call for reciprocation, but never cooperation.(fn37) As Robert Kutak explained, `a fundamental premise of the adversary system of jurisprudence is that a competitive, rather than cooperative, presentation and analysis of the facts underlying a dispute will produce a greater number of correct results.'(fn38)

In believing in the rightness of its position, each party is ultimately responsible for presenting his case. The parties in the adversary system initiate and control the definition of the dispute.(fn39) The advocate's responsibility is to present its side, not an even-handed assessment of the facts, thus leaving the opponent with the responsibility of presenting its version.(fn40) Each party, either alone or through legal representation, seeks to `put its best foot forward.'(fn41) The adversary system presupposes that each side bears the obligation not only to present evidence supporting its case, but also to ferret out all evidence that supports his case and...