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Disqualifying a District Attorney When a Government Witness Was Once the District Attorney's Client: The Law between the Courts and the State


Eli Wald


University of Denver Sturm College of Law


Denver University Law Review, Vol. 85, p. 369, 2007
U Denver Legal Studies Research Paper No. 08-06

Abstract:     
Should a district attorney be disqualified from a criminal case if a prosecution witness is a former client of the district attorney? Although there has been significant academic, legislative and judicial attention to disqualification of district attorneys in general, and to disqualification of district attorneys who represented the defendant in particular, a prosecutor's disqualification when a former client becomes a government witness has received no academic attention, has not been addressed by statutes, and has not been decided by courts. Studying the grounds for disqualification of district attorneys whose former clients become government witnesses sheds light on the complex battle between the judiciary and the state for authority and control over the Office of the District Attorney and the criminal justice system.

In this conflict, the judiciary invokes its inherent powers to disqualify district attorneys and the state responds by asserting executive powers and promulgating disqualification statutes asserting exclusive authority. Recognizing the state's immense power and inherent advantage over defendants, the criminal justice system incorporates safeguards, often by means of broad judicial interpretation, to protect the right of the accused to a fair trial. In the context of disqualification of district attorneys, the judiciary's role in expanding and protecting defendants' rights against the state suggests a sympathetic approach towards motions to disqualify district attorneys. However, to further its interest in effective pursuit of law and order, the state may seek to protect the Office of the District Attorney from undue interference. This motivation may lead to a general approach disfavoring disqualification motions and to displeasure with the exercise of judicial inherent powers to disqualify district attorneys.

The issue of disqualification of district attorneys when a former client becomes a government witness thus involves more than balancing the state's interests in administering law and order via the Office of the District Attorney against the interests of defendants and former-clients-turned-witnesses. It provides an opportunity to explore how law is created in the shadow of, and as the result of, the battle between the courts and the state and to appreciate the consequences for parties caught in the crossfire.

Part I of this article explores the doctrine of inherent powers, its use by the judiciary to disqualify district attorneys in the shadow of its relationship with the executive branch, and legislative attempts to abrogate it by means of promulgating disqualification statutes asserting exclusive authority over the regulation of the District Attorney's Office. It asserts that such exclusive provisions are unconstitutional because they violate the separation of powers doctrine and that courts have the inherent power to disqualify a district attorney beyond the authority granted to them by statute. Finally, Part I examines the circumstances under which courts should exercise their inherent power and disqualify a district attorney whose former client is a government witness.

Part II studies disqualification statutes, argues that such statutes should generally be read to allow for the disqualification of a district attorney who represented former-clients-turned-witnesses for the government, and explores the circumstances under which such disqualification would be appropriate. Part III analyzes a recent Colorado case to illustrate that lack of resolution of the issue of disqualification of district attorneys whose former clients become government witnesses has unfortunate consequences for those witnesses, for defendants and for the integrity of the judicial process.

Number of Pages in PDF File: 37

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Date posted: February 24, 2008  

Suggested Citation

Wald, Eli, Disqualifying a District Attorney When a Government Witness Was Once the District Attorney's Client: The Law between the Courts and the State. Denver University Law Review, Vol. 85, p. 369, 2007; U Denver Legal Studies Research Paper No. 08-06. Available at SSRN: http://ssrn.com/abstract=1096553

Contact Information

Eli Wald (Contact Author)
University of Denver Sturm College of Law ( email )
2255 E. Evans Avenue
Denver, CO 80208
United States
HOME PAGE: http://law.du.edu/index.php/profile/eli-wald
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