Ethics & Human Bias: The Co-Existence of ABA Model Rule 3.8 and Human Bias

Ethics & Human Bias: The Co-Existence of ABA Model Rule 3.8 and Human Bias
Duration: 60 Minutes
Module 1Resources
Recorded on: 2019-12-12
Unit 1Slide Deck: Ethics & Human Bias
Unit 2Workbook: Ethics & Human Bias
Unit 3Recording: Ethics & Human Bias

Ethics and human bias are two topics that can get tricky to navigate when entangled with each other. For prosecutors, human bias can create problems when observing their ethical responsibilities. As Ministers of Justice, they are bound to specific ethical responsibilities that may even be considered ‘superhuman standards’.

To lead this discussion is Elizabeth Burton Ortiz, the Executive Director of Arizona Prosecuting Attorneys’ Advisory Council. She is a sworn special prosecutor in several Arizona counties and serves on the State Bar of Arizona Board of Legal Specialization and on the Public Lawyers Division Executive Council. She is also a board member of the National Association of Prosecutor Coordinators, the Arizona Forensic Science Academy and the Arizona Supreme Court’s Commission of Victims in Court, among others.

Specifics she delved into on this course include:

  • The prosecutor’s unique duties as a lawyer and their critical role in communities.
  • The basis of the higher standard of prosecutorial ethics.
    • The Berger v. United States Supreme Court decision that briefly defined the roles and responsibilities of a prosecutor.
    • The American Bar Association (ABA) Module Rule 3.8 which comprehensively details the expected conduct and basis of ethics for a prosecutor of a criminal case.
  • Human’s inherent tendency for bias that affects one’s judgment and decision-making and how they may come in conflict with prosecutorial ethics.
  • Confirmation bias that tends to limit an individual into a certain set of beliefs and prevents exploring different information or data.
    • Examples of how confirmation bias occurs in business and even the field of science.
    • Combatting confirmation bias through awareness, open-mindedness, and being receptive to opposing ideas.
  • Understanding implicit bias juxtaposed to explicit bias.
    • Where and how implicit bias manifests.
    • Combating implicit bias by acknowledging it, having the will to change, considering concrete factors, and looking at diverse perspectives.
  • The challenges these biases pose to prosecutors and their ethical obligations.
  • A look into the stages of prosecutorial responsibilities and how bias and ethics play into these.
  • Traditions in the legal field and improving these through open-mindedness to new approaches.
  • Tips and tricks to operate within the higher ethical standards for prosecutors and evade biases.
    • Recognizing bias and human susceptibility to it.
    • Promptly managing stakeholders’ expectations about your role and responsibilities.
    • Considering how seemingly innocuous decisions can impact not just one’s self but the agency and the community as well.
    • Challenging one’s self to consider other perspectives.
    • Willingness to admit mistakes and accept new and valid perspectives.
  • Questions during the Q&A were about:
    • Creating a culture that is open to communicating, different perspectives, and admitting mistakes.
    • The What You Do Matters: Lessons from the Holocaust training, what it is, its content, and where it is available.
    • How to instigate change even when you are not the leader.
    • Checking the validity of the basis of our decisions and ensuring that it is not based on a bias.



Audience Comments:

  • “As a middle manager, its encouraging to be encouraged to be open-minded, challenge biases etc. Goes up the chain and down the chain. Thank you for the reminder.” — Laura
  • “The reminder that prosecutors are extraordinary and to see the positives in our role. In addition, I found the information regarding the training put on by the Holocaust Museum very interesting.” — Chad



Additional Resources
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