Duty to Disclose Previous Convictions

Question 1

What is counsel’s duty in relation to UNDISCLOSED PREVIOUS CONVICTIONS of his client?

( - 9 Points)

Answer 1

• Counsel is not under a duty to REVEAL previous convictions to P or Court.
• Nor should Counsel WITHDRAW in such situations
• Counsel should provide clear advise to his client regarding his options:
  1. inform the D that information regarding his previous convictions will REMAIN CONFIDENTIAL unless he waives privilege
  2. Inform the D that if the information is kept confidential Counsel will be RESTRICTED in what he can say in MITIGATION
  3. Advise the D that NOTHING can be SAID as the the D’s RECORD which expressly or impliedly adopts a position as outlined by the P
  4. In particular NOTHING can be SAID as
• to the ABSENCE OF CONVICTIONS of the type or gravity of the undisclosed convictions.
• a PERIOD OF TIME as being FREE FROM CONVICTIONS if the undisclosed conviction occurred during that period
• the ABSENCE of a PARTICULAR SENTENCE or DISPOSAL in the D’s antecedents if such sentence or disposal was in fact imposed in respect of the undisclosed conviction
• an apparently GOOD CHARACTER of the D

Question 2

What is the likelihood of the P or the Court discovering the undisclosed conviction?

( - 1 Point)

Answer 2

• Counsel should advise the D that there is a REAL POSSIBILITY that the FAILURE to REFER TO D’S ANTECEDENTS will not go unnoticed by experienced P counsel or Judge.

Question 3

What can happen if the undisclosed conviction is discovered?

-3 Points

Answer 3

• can lead to ADJOURNMENT
• RELISTING as ALTERATION OF SENTENCE
• REFERENCE to ATTORNEY GENERAL

Question 4

What advise should D be given regarding SENTENCING if the undisclosed conviction is discovered?

( - 4 Points)

Answer 4

Advise the D as to the NATURE of the sentencing exercise if the court BECAME AWARE of the undisclosed convictions
- specially as to the CONSEQUENCES of a MANDATORY LIFE SENTENCE
- Advise the D that if the conviction REMAINS UNDISCOVERED, the MANDATORY SENTENCING PROVISIONS will not operate
BUT if it is discovered then sentencing will take place in accordance with the REVISIONS