Part I of this Essay describes ten contexts in which prosecutors make threats and behave like bullies. Some of these contexts are familiar, such as grand jury proceedings or plea discussions, where threats are generally upheld. Threats in other contexts are not as easy to justify, such as threats to obtain testimony from prosecution witnesses, retaliating for the exercise of constitutional rights, forcing a waiver of civil rights claims, and publicly humiliating people. Other threats clearly are illegitimate and unethical, such as threats that drive defense witnesses off the stand, bringing criminal charges against outspoken critics and defense experts, and threats to charge corporations unless they refuse to pay the legal fees of employees. Then, Part II examines the legitimacy and illegitimacy of threats, provides a framework for analyzing the legitimacy of threats, and uses this framework to determine whether a prosecutor’s threats have crossed the line.
Bennett L. Gershman, Threats and Bullying by Prosecutors, 46 Loy. U. Chi. L.J. 327 (2014), http://digitalcommons.pace.edu/lawfaculty/981/.