PUBLISHED:June 20, 2008

Lisa Kern Griffin joins Duke Law faculty

Lisa Kern Griffin has a graduate degree in English, but she also thinks of the five years she spent as a federal prosecutor in Chicago as a sort of advanced degree in federal criminal law, her chosen area of scholarship.

“My scholarship and my teaching are informed by the institutional knowledge I gained in Chicago,” says Griffin, the newest addition to the Duke Law faculty. Having joined the U.S. Attorney’s Office in 1999 following a clerkship on the United States Supreme Court with former Associate Justice Sandra Day O’Connor, Griffin worked on a range of federal crimes, eventually specializing in cybercrime and public corruption. She has led 12 jury trials, including one of the first federal trials for Internet software piracy, prosecuted more than 100 defendants, and argued several cases before the United States Court of Appeals for the Seventh Circuit.

“I originally chose to be a federal prosecutor precisely because I had an academic interest in criminal law and procedure and felt I could benefit from on-the-ground experience,” says Griffin, a graduate of Stanford Law School, where she was president of the Stanford Law Review. “But I stayed in the U.S. Attorney’s office — and enjoyed every day there — not only because the work was substantively engaging but also because I was surrounded by truly great lawyers and colleagues.”

Since joining the UCLA law faculty in 2005, Griffin has examined the political and social meanings and consequences of federal criminal enforcement through her scholarship. “I have great admiration for federal prosecutors and generally believe that they act in good faith,” she says. “But there are institutional failings, and I’m interested in exploring the balance of power within the system — in thinking about how best to calibrate the relationship between legislators, prosecutors, judges, juries, and defendants.”

Griffin’s 2007 article, “Compelled Cooperation and the New Corporate Criminal Procedure,” published in the New York University Law Review, critiques the federal government’s recent use of deferred prosecution agreements (DPAs) in response to Enron-era frauds. The government agrees to defer or dismiss charges against corporations that meet stringent cooperation requirements and identify employee targets. This compelled partnership between “public governmental investigations and private corporate compliance efforts” has developed, Griffin theorizes, without adequate consideration of the procedural protections that should apply.

“The use of DPAs has shifted a number of interactions and incentives into the investigative stage of prosecution. Many of these issues would previously have arisen when determining liability — in plea negotiations or at trial — or at the sentencing phase,” Griffin explains. “The investigative stage lies further below the radar. And because there is no judicial oversight at that point, there is also little recourse for individual defendants.” Further, she said, there has been insufficient attention given to whether the use of DPAs in this way is accomplishing the broader goal of increasing proactive compliance with investigators.

Griffin’s current project, titled “The Social Meaning of Criminal Lying,” carries forward certain strands from her research into compelled cooperation, notably “the nature of the process crimes that arise organically from interactions between defendants and prosecutors or agents,” she says. “I analyze the creation and definition of actionable falsehoods in federal investigations, including recent cases involving celebrity athletes, corporate leaders, and politicians. Drawing on criminal law theory and social psychology, I consider the role of authority, efficiency, and apology in the false statement charges, and suggest that expressive harm might result from pretextual prosecutions for defensive lies.”

In teaching evidence, Griffin also draws extensively from her experience, encouraging her students to think about the wider social context for the rules. She likes to use clips from movies and media depictions of the justice system as hypotheticals and conversation sparks. “A bit of pop culture also helps leaven a very rigorous class,” notes Griffin, who counts the movie “My Cousin Vinny” as one of her favorite classroom “aides.” She also shows scenes from films like “To Kill a Mockingbird,” “A Few Good Men,” and “Legally Blonde” when discussing cross-examination techniques and impeachment.

Griffin says her approach to law and legal scholarship has been significantly influenced by Justice O’Connor and Judge Dorothy Nelson of the Ninth U.S. Circuit Court of Appeals, for whom she clerked. “In my scholarship I reference my faith in judicial oversight. That perspective has certainly been informed by my clerkships with Justice O’Connor and Judge Nelson. Frankly, they are the ‘aspirational judges’ I have in mind when I write about judicial review.

“Justice O’Connor combines intellectual integrity and devotion to the law with respect and understanding for individual litigants,” continues Griffin. “I learned a great deal from her jurisprudence, of course, but even more from her personal strength, legendary work ethic, and incredible grace. She sets the example for a life in the law, and I often think of her encouragement to do your best and hold your own, whatever the task.

“Like Justice O’Connor, Judge Nelson is fair-minded, pragmatic, and a generous teacher and colleague. I have been extremely fortunate in my mentors, and I hope to be able to give some measure of that back to my students.”