ATTORNEYS CHARGED with law enforcement responsibilities must conduct themselves at all times in a manner that promotes public confidence in the justice system. We hold prosecutors to a high standard of ethical conduct; however, prosecutors of domestic and dating violence more often than not find themselves in ethical dilemmas created by the very victims they are tasked with protecting from further harm--the victims who recant.
Jacques Derrida (1930-2004) was a French philosopher who criticized literary and philosophical texts and political institutions. He deconstructed thought and words in an attempt to prompt us to re-conceive the difference that divides self-reflection--working toward preventing the worst kind of human violence. His work was a relentless pursuit of justice, which today seems impossible to achieve. As prosecutors, professionalism and civility are simply not optional behaviors to be displayed only when one is having a good day. As Justice Sutherland famously observed in United States v Berber, 295 U.S. 78 (1935), "a prosecutor's interest in a criminal case is not that he or she 'shall win a case, but that justice shall be done.'"
A prosecutor's daily work is never boring. We see, hear, and read about situations that we just "couldn't make up!" Our days are filled with stories that are more entertaining than television. When we voir dire, we tell potential jurors that we expect to prove each element "beyond a reasonable doubt," but that we may still leave a lingering question or two that would not be an element of the charged indictment or bill of information. Each day, we as prosecutors much catch ourselves, as we silently question "why"?--when there are lingering questions that will never be answered. But in doing so, we must maintain our civility. We cannot eye-roll; we cannot exude a dramatic sigh or other expression of displeasure because our victim has returned to her abuser. We cannot let loose vulgar speech and abusive conduct when the abuser is re-arrested for similar conduct. And, all of these situations occur daily for the prosecutor that handles domestic and dating violence!
The ethical dilemma begins with the victim who recants. ABA Model Rule 3.3(a)(3) charges that "A lawyer shall not knowingly... (3) Offer evidence that the lawyer knows to be false. If a lawyer... has material evidence and conies to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to...