Ethics and the Criminal Prosecutor Guilt Shall Not Escape nor Innocents Shall Suffer
By Robert Don Gifford

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.
— The Federalist No. 51 (James Madison) (1788)

Abraham Lincoln once said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” Not unlike any other attorney armed with legal knowledge and training, a criminal prosecutor can affect a person’s life. Unlike other attorneys, a criminal prosecutor can affect a person’s life by taking away freedom, imposing monetary sanctions, and in the most severe of situations - seeking to impose the ultimate punishment of death. With these larger powers comes greater responsibility, thus subject to additional constraints and looked upon with greater scrutiny. As the Oklahoma statute governing ethical conduct of the prosecutor states in the committee comments; “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”1 United States Supreme Court Justice William O. Douglas has stated that the prosecutor’s role “is not to tack as many skins of victims as possible to the wall, [but] to vindicate the right of the people as expressed in the law and give those accused of crime a fair trial.”2 Regardless of the outcome, at the end of the day the duty of the prosecutor is to seek justice, not merely to convict.3

To the proverbial “man on the street,” a subject of a prosecutor and ethics4 may seem odd since one might assume that there is no need to distinguish prosecutorial ethics from any other trial attorney. The demands of the profession and its historical honor begin with the basic rules established to govern our conduct as attorneys. All Oklahoma attorneys take an oath that requires one’s law practice to comply with the requirements of the rules of ethics and conduct. While the ethics rules apply to all attorneys, unarguably prosecutors are held to a higher standard of ethical behavior by Oklahoma statutes, judiciary, and even the ever-watchful eye of “court of public opinion.” It is an easy thing to do for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.5 It is not. The job is “not just to win, but to win fairly, staying well within the rules.”6

While the ethical rules and case law cannot cover every possible scenario, this article is to serve as a starting point for some of those instances that have arisen in various jurisdictions. While an appellate court may find a prosecutor’s actions do not require reversal of a conviction or that a prosecutor may have immunity to protect him from personal civil liability, he is still subject to professional discipline from the bar association.7 Arguments previously ruled improper by the Oklahoma appellate courts can be grounds for disciplinary complaints to the OBA.8

THE FIRST PITFALL: TO CHARGE OR NOT TO CHARGE

Power corrupts. Absolute power is kind of neat. — John Lehman, Secretary of the Navy 1981-1987

The decision of whether to pursue charges against a potential defendant is often one of the most difficult aspects in attempting to achieve “justice.”9 Professor Irving Younger, a former prosecutor, wrote, “[a] prosecutor’s power to damage or destroy anyone he chooses to indict is virtually limitless.”10 Supreme Court Justice Felix Frankfurter also wrote that a prosecutor “wields the most terrible instruments of government.”11 The Oklahoma statutes recognize the special responsibilities inherent of such power by codifying the requirement that a prosecutor should “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”12 Quite simply, the prosecutor has more control over life, liberty and reputation than any other person in America.13

Misconduct by a prosecutor is usually invoked only in a few areas in the course of a criminal case. One of these target-rich areas is a claim of “outrageous prosecution.”14 Although one federal Circuit Court of Appeals has declared this doctrine “stillborn”15 while another has called it “moribund,”16 challenges still arise based on claims of government misconduct. Such alleged misconduct usually come from complaints of entrapment,17 violation of grand jury secrecy,18 misleading of a grand jury with use of false testimony or deceptive evidence,19 or even where a prosecutor may have appeared to apply undue coercion on a grand jury. Even when putting a criminal case together, Oklahoma Rule 3.8(j) promulgates that a prosecutor may not subpoena another lawyer to appear before a grand jury to testify about past or present representation of particular clients unless that prosecutor reasonably believes that the information is not otherwise protected, that it is essential to the investigation, and there is no other reasonable means to obtain the information.

It has long been considered a proper exercise of prosecutorial discretion to prosecute one defendant while others who may have committed the same offense not be prosecuted at all. However this discretion becomes improper if based upon otherwise unjustifiable reasons such as race, religion or any other arbitrary classification.20 A prosecutor may also not attempt to penalize a defendant for merely exercising a right plainly allowed by law.21 However a prosecutor is free to carry out a threat made during plea negotiations to bring additional charges against an accused who refused to plead guilty to the original charge.22 There also may be a presumption of vindictiveness when a prosecutor engages in a practice of seeking a heavier sentence or seeks to bring more severe charges for a reconvicted defendant after a successful appeal.23 However there is no such presumption of vindictiveness in a decision to supersede charges with additional charges immediately after a defendant’s acquittal on separate charges in a previous indictment.24 Finally, any lawyer cannot present, participate in presenting or threaten to present criminal charges “solely to give an advantage in a civil matter.”25

DISCOVERY ISSUES: “YOU GET WHAT YOU GET, AND YOU WON’T THROW A FIT!”26

Discovery in criminal cases is a creature that is relatively young in the overall scope of our judicial process. It was not until the 1960s, with the United States Supreme Court’s seminal opinion in Brady v. Maryland,27 its progeny, and the subsequent expansion of the Federal Rules of Criminal Procedure with Rule 16 that an adequate framework was created. Despite the youth of the criminal discovery process, a defendant’s right to some form of discovery can be traced as far back as the treason prosecution of Aaron Burr in 1807.28 Chief Justice John Marshall, sitting as the traveling circuit judge, permitted the defense to discover a letter to President Jefferson impeaching a key witness for the government:

So far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country has been, to permit any individual, who was charged with any crime, to prepare for his defence and to obtain the process of the court, for the purpose of enabling him so to do. This practice is as convenient and as consonant to justice as it is to humanity. It prevents, in a great measure, those delays which are never desirable, which frequently occasion the loss of testimony, and which are often oppressive.29

The modern law of discovery carries forward Chief Justice Marshall’s decision and focuses on the prosecutor’s duties in the process and explains how he should go about fulfilling this obligation.

Under the applicable ethics rules and case law from nearly every jurisdiction in the land, the prosecuting attorney has a duty to make timely disclosure to the defendant of the existence of material evidence known to the prosecutor that tends to negate the guilt of the accused or mitigate the degree of the offense.30 Oklahoma Rule 3.8(d) requires timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. In connection with sentencing, it requires disclosure to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

YE OL’ WOODSHED — WITNESS ISSUES

While it is not the least improper for a prosecutor to meet with witnesses to prepare a case, it too can be wrought with traps for the unwary. While appropriate to encourage a witness to look at the jury or judge, to speak clearly and act confident while testifying, going much beyond that may lead to unintended consequences. A suggestion that a witness who may not be all that certain of a particular fact to change that demeanor in order to appear more assertive may very well cross that boundary from simply “preparing” a prosecution witness to impermissible “coaching” or “wood shedding” of that witness.

One obvious example that may be perceived as impermissible coaching is the use of a “talking points” memorandum. Such a document, while merely to help an otherwise nervous witness prepare for his testimony, can be viewed as a document purposely instructing what that witness did or did not see.31

The law is also clear that a prosecuting attorney may be committing misconduct by calling a witness to testify knowing in advance that witness will invoke his Fifth Amendment rights.32 However, this is improper only where the purpose was to invite the jury to draw impermissible inferences from such invocation to infer the guilt of the accused. In addition, “... a witness may not be called and then impeached if the underlying purpose is to utilize hearsay evidence as substantive evidence against the defendant.” 33

While not necessarily a “witness” issue, when a defendant actually takes the witness stand to testify, it is not without constraint when the prosecutor stands to cross-examine. A government attorney should not attempt to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of arrest.34

OPENING STATEMENTS

If thou tell’st the heavy story right, Upon my soul, the hearers will shed tears; Yea even my foes… — William Shakespeare, Henry VI, Part III, Act I, Scene IV

The opening statement is one of the most important moments in any trial. The poet T.S. Eliot once wrote, “In my beginning is my end.” While Eliot may not have been talking about trial practice, the truth in these words is well understood. The opening statement presents an opportunity to not only inform, but also to persuade. The purpose of a prosecuting attorney’s opening remarks is to give the jury the broad outline of the case so a jury can better comprehend it. A prosecutor should not depart from that purpose with unsavory characterizations that may be overdramatic or that could poison a juror’s mind against the defendant.35 In addition, it is improper for a prosecutor to make remarks in an opening statement of his personal evaluation of the case to the jury.36

Oklahoma Rule 3.4 lays out the guidance for any opening statement that “[t]o make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.” This language mirrors that of the United States Supreme Court’s discussion in United States v. Dinitz,37 when Chief Justice Warren Burger succinctly stated the proper scope and purpose of the opening statement.

While the underlying questionable comments in Dinitz arose from the misconduct of a criminal defense attorney, it is the prosecuting attorney that is most often under the judicial and public microscope when argument goes too far astray.

In its opening statement to the finder-of-fact (judge or jury), the prosecution is entitled to describe the evidence and witnesses reasonably expected during the course of trial.38 In contrast, it would be improper to discuss evidence that will not be introduced during the course of the trial.39 Such misconduct during opening remarks may result in a mistrial or the reversal of a conviction on appeal.40 However, subsequent suppression of certain evidence, dismissal of certain counts or failure to introduce evidence referred to in the opening statement does not necessarily create grounds for reversal.41 The effect of an opening statement that discusses evidence that is not subsequently introduced will depend on the good faith of the prosecutor and the apparent impact of the statements in the context of the whole trial.42

While certain otherwise improper conduct committed during a closing argument may be excused as an invited response to defense misconduct or attacks, the same is not true of improper statements made during opening statement. Courts take the view that the government’s opening statement has been prepared in advance of the trial.43 Additionally, an appellate court may conclude that the government’s expectation that certain evidence would be admitted was so speculative that any reference to such evidence during opening statement would clearly be improper.44 Discussing comments from a tip from an anonymous source that would still be subject to hearsay objections, discussing a confession of one co-defendant which could very well be inadmissible against other co-defendants45 or referring to a defendant’s jewelry as “jewelry worn by drug dealers”46 are examples of the sort of comments that would be well advised to wait for a court’s ruling on its admissibility.

THE LAST TEMPTATION — CLOSING ARGUMENTS

Whenever a man does a thoroughly stupid thing, it is always from the noblest motives. — Oscar Wilde, The Picture of Dorian Gray, (1891)

While no criminal trial is ever perfect,47 prosecutorial misconduct in closing argument has been relatively well documented and extensively litigated. Parties on both sides have wide latitude in closing argument to discuss the evidence and reasonable inferences from that evidence. Appellate reversal is generally only required when it is grossly improper and affects a defendant’s rights.48 It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true. But it is clearly inappropriate for a prosecutor to propound inferences known to be false or at least good reason to doubt. The difference between an advocate “ask[ing] the jury to infer only things that he believed in good faith might be true” and making “factual assertion he well knew were untrue” is “ the difference between fair advocacy and misconduct.”49 While an entire bar journal could be dedicated to all of the ways that an improper closing argument can lead to problems, for the purposes of brevity and as a starting point the highlights of what a prosecutor should avoid in arguments are noted:

• Name calling. Prosecutors must not make derogatory remarks about opposing
  counsel or opposing parties.50 The Oklahoma courts look with disfavor on name calling.51
• Inflaming the passions of a jury. A prosecutor should not encourage jurors to let improper sympathy, sentiment or prejudice influence their decisions.52
• Sending a message. In a discussion of the movies made by his studio, Samuel Goldwyn of Metro Goldwyn Mayer fame once said that if he wanted to “send a message” he would go to Western Union. Most courts condemn this methodology as it applies to criminal prosecutions, and risking reversal of conviction by inflaming the passions of a jury is a quick way to do it.53
• Defendant saying “no.” Commenting on a defendant’s refusal to consent to warrantless search of vehicle and contacting of a lawyer, while tempting is always dangerous.54
• A defendant saying nothing. A prosecutor’s direct reference to a defendant’s failure to testify obviously violates the defendant’s privilege against compelled self-incrimination.55 However, the U.S. Supreme Court has ruled that a prosecutor’s comment that “[the defendant] could have taken the stand and explained it to you, anything he wanted to” did not violate the Fifth Amendment because it was fair response to an argument initiated by defense counsel to the effect that counsel’s nontestifying client had not been given a chance to explain his side of the story.56
• Vouching. Oliver Wendell Holmes once said, “When I say that a thing is true, I mean that I cannot help believing it.”57 Vouching occurs when a prosecutor expresses a personal belief in a witness’s credibility — either through explicit assurances or by implying that other evidence not presented to the jury supports the witness’s testimony.58 Improper vouching involves a perceived attempt by the prosecutor to invoke a personal belief and implied credibility of the government, its office, the case, or prosecution witnesses.59
• Stay away from saying “I.” Inherent with vouching and always worthy of repeating, prosecutors must be diligent to refrain from expressing personal opinions.60 The government’s counsel is, as an individual, “‘properly and highly respected by the members of the jury for his integrity, fairness, and impartiality’ ... ‘Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.’”61 As the Oklahoma Court of Criminal Appeals has often reminded us, it defies common sense to use an improper argument that can snatch defeat from the jaws of victory.62

CONCLUSION

One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to “life, liberty and property” are in the professional keeping of lawyers. — Justice Felix Frankfurter 63

The essence of the prosecutor’s role is expressed in the oft-misquoted inscription on the wall paneling near the office of the U.S. attorney general: “The government wins its point when justice is done its citizens in the courts.”64 The lawyer who undertakes the legal path to represent the government, whether it be municipal, state, federal, or tribal, in criminal cases will find an array of ethics rules which guides the nature of the advocacy. Our criminal justice system grants extraordinary powers to a prosecuting attorney, but in exchange places extraordinary burdens upon those shoulders as well. A prosecutor must not only vindicate the sovereign’s interest in convicting the guilty, yet all the while be steadfast in mindset to protect the innocent. At the same time, he is constrained in his zealousness by a matrix of statutes, rules, constitutional mandates and ethical standards designed to protect against an abuse of power.

Former United States Attorney General Benjamin R. Civiletti has written:

The lines which are so carefully drawn to limit the scope of advocacy do not, however, constrain prosecution and defense equally. The Sixth Amendment Right to counsel carries with it the right to zealous representation, and its force presses the defense lawyer to the outer boundaries of the system. Failure to be sufficiently vigorous risks the client’s liberty and reputation, while zealousness risks little. The only immediate sanction for overstepping these boundaries is the contempt citation, a penalty rarely imposed. On the other hand, the prosecutor must be constantly alert that he does not even come close to the bounds of propriety, that there be not even the suggestion of overreaching. He must be cognizant of the specific rules which govern his conduct and of the risk that he will be perceived to be misusing his power, or the possibility that he will taint the proceeding through some generalized or cumulative violation of fair process.65

It is not enough for the prosecutor to do the job adequately. The prosecutor must stand for fairness and equality in the administration of justice and maintain that delicate balance of vigorous advocacy on behalf of the people of the sovereign he represents. No discussion of prosecutorial ethics is complete without reference to an opinion of the U.S. Supreme Court from 70 years ago and no better way to sum up the essence of the role of the prosecutor. In Berger v. United States, the Supreme Court noted:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.66

1. See also National District Attorneys Association, National Prosecution Standards [2nd ed. 1991].
2. Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas, J., dissenting).
3. American Bar Association Standards Relating to the Administration of Criminal Justice [1991]. Standard 3-1.2.
4. Rule of Professional Conduct, 5 O.S. 1991, Ch: 1, App. 3-A.
5. United States v.Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993).
6. Kojayan at 1323.
7. State ex rel. Oklahoma Bar Ass’n v. Dobbs, 94 P.3d 31 (Okla. 2004); See e.g. Imbler v. Pachtmena, 424 U.S. 409, 428-429 (1976) (noting that prosecutorial immunity from liability in civil suits brought under 42 § U.S.C.A. 1983 does not leave the public without recourse to censure prosecutorial misconduct because prosecutors remain subject to professional discipline).
8. Garrison v. State, 103 P.3d 590 (Okla. Crim. App. 2004).
9. See Orvill C. Snyder, The District Attorney’s Hardest Task, 30 Am. Inst. Crim. L. & Criminology 167 (1939-1940); Newman F. Baker, The Prosecutor — Initiation of Prosecution, 23 Am. Inst. Crim. L. & Criminology 770 (1932-1933).
10. Irving Younger, Memoir of a Prosecutor, Commentary, vol. 62, no. 4, p. 66 (Oct. 1976).
11. See Letter to The New York Times, March 4, 1941, quoted, Martin v. Merola, 532 F.2d 191, 196 (2d Cir., 1976)(Lumbard, J., concurring).
12. See 5 O.S. Ch. 1, App. 3-A, Rule 3.8 Special Responsibilities of a Prosecutor.
13. Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology 3 (1940-1941).
14. See United States v. Meyers, 527 F.Supp. 1206, 1223 (E.D.N.Y., 1981) for an extensive listing of factors to be considered in evaluating an alleged “outrageousness” of a prosecutor’s misconduct.
15. United States v. Boyd, 55 F.3d 339 (7th Cir. 1995).
16. United States v. Santana, 6 F.3d 1 (1st Cir. 1993).
17. United States v. Russell, 411 U.S. 423 (1973).
18. Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). See also Robert Don Gifford, The Fifth Amendment & the Federal Grand Jury, 76 Okla.B.J. 1799 (August 13, 2005).
19. United States v. Hogan, 712 F.2d 757 (2nd Cir. 1983).
20. United States v. Adkins, 464 F. Supp. 419 (1978).
21. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
22. United States v. Goodwin, 457 U.S. 368 (1982).
23. North Carolina v. Pearce, 395 U.S. 711 (1969); Blackledge v. Perry, 417 U.S. 21 (1974).
24. United States v. Wall, 37 F.3d 1443 (10th Cir. 1994).
25. See Iowa State Bar v. Michelson, 345 N.W. 2d 112 (Iowa 1984); ABA Code DR 7-105.
26. Author unknown. Oft-used quote from many-a-parent to child.
27. Brady v. Maryland, 373 U.S. 83 (1963).
28. United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807)(No. 14, 692d).
29. Id. at 32.
30. See United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985).
31. See Michael Higgins, “Fine Line,” ABA Journal, May 1998, p. 52 discussing the ethical quandaries of the President Clinton/Monica Lewinsky investigation regarding whether attorney Vernon Jordan urged an intern to conceal a relationship with the President.
32. See Namet v. United States, 373 U.S. 179 (1963).
33. United States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992)(citations omitted).
34. Doyle v. Ohio, 426 U.S. 610 (1976).
35. United States v. Somers, 496 F.2d 723 93d Cir. 1974); but see United States v. Helbling, 209 F.3d 266 (3d Cir. 2000).
36. United States v. Davis, 548 F.2d 840 (9th Cir. 1977).
37. United States v. Dinitz, 424 U.S. 600, 612 (1976) (C.J. Burger, concurring).
38. United States v. Novak, 918 F.2d 107 (10th Cir. 1990).
39. United States v. Taren-Palma, 997 F.2d 525 (9th Cir. 1993), cert. denied, 114 S.Ct. 1648 (1994);
40. Novak, supra.
41. United States v. Tolman, 826 F.2d 971 (10th Cir. 1987); United States v. Ashman, 979 F.2d 469 (7th Cir. 1992), cert. denied, 114 S.Ct. 62 (1993).
42. Novak, supra.
43. United States v. Johnson, 767 F.2d 1259 (8th Cir. 1985).
44. See Novak, supra, (improper to discuss the substance of an anonymous tip because the substance of the tip was inadmissible hearsay).
45. United States v. Killian, 524 F.2d 1268 (5th Cir.), cert. denied sub. nom., Rom v. United States, 425 U.S. 935 (1976).
46. United States v. Brockington, 849 F.2d 872 (4th Cir. 1988).
47. See Powell v. State, 995 P.2d 510 (Okla. Crim. App. 2000), cert denied, 531 U.S. 935 (2000).
48. Hanson v. State, 72 P.3d 40 (Okla. Crim. App. 2003).
49. United States v. Kojayan, 8 F.3d 1315, 1318-19.
50. See State v. Turner, 538 P.2d 966 (Kans. 1975); see also Professional Responsibility, The Army Lawyer (Sept. 1978) (“lowly, dishonest welsher”).
51. Malicoat, 992 P.2d 383, 401 (Okla. Crim. App. 2000), cert. denied, 531 U.S. 888 (2000).
52. Robinson v. State, 900 P.2d 389, 398 (Okla. Crim. App. 1995).
53. See Gaylor v. State, 957 P.2d 855 (Wyo. 1998); Williams v. State, 522 So. 201, 209 (Miss. 1988); Thorton v. Florida, 767 So. 2d 1286 (Fla. App. 2000).
54. Arizona v. Palenkas, 933 P.2d 1269 (1996).
55. Griffin v. California, 380 U.S. 609 (1965); But see Portuondo v. Agard, 529 U.S. 61 (2000) (a prosecutor’s comment that a defendant who testified had the opportunity to tailor his testimony after hearing other witnesses does not violate the defendant’s Fifth and Sixth Amendment rights).
56. United States v. Robinson, 485 U.S. 25 (1988).
57. Oliver Wendell Holmes, Jr., Ideals and Doubts, Collected Legal Papers 303, 304 (1920).
58. Pickens v. State, 19 P.3d 866, 880, (Okla. Crim. App. 2001), cert. denied, 536 U.S. 961 (2001).
59. United States v. Davis, 15 F.3d 1393 (7th Cir. 1994) (“[S]he has to tell the truth. We will not use her otherwise.”; United States v. Emmert, 9 F.3d 699 (8th Cir. 1993) (prosecutor stated in rebuttal closing argument that prosecution witness was “very candid, very open and very honest in her testimony.”; United States v. Kerr, 981 F.2d 1050 (9th Cir. 1992) (“The question is, were [the witnesses] hoodwinking you when they testified? I think not.”).
60. Malicoat v. State, 992 P.2d 383, 401 (Okla. Crim. App. 2000), cert. denied, 531 U.S. 888 (2000).
61. Hall v. United States, 419 F.2d 582 (5th Cir. 1969).
62. Kutin v. State, 1967 OK CR 134, ¶ 4, 430 P.2d 848, 849.
63. Schware v. Bd. Of Bar Exam’rs, 353 U.S. 232, 247 (1957).
64. See James Cooper, Note, The Solicitor General and the Evolution of Activism, 65 Ind. L.J. 675, 696 n.8 (1990). See also Brady at 87.
65. Benjamin Civiletti, The Prosecutor As Advocate, 25 N.Y.L. Sch. L. Rev. 1, 17 (1979).
66 295 U.S. 78, 88 (1935).

About the Author
Robert Don Gifford is an assistant U.S. attorney and OBA member residing in Reno, Nev. He has prosecuted in federal courts in Nevada and Kentucky, the Oklahoma state courts, as well as prosecuted and defended in military courts worldwide. Any views stated are of the author and not the departments of justice or defense.