Responsibilities of Judges, Prosecutors, and Defense Counsel

Question 1

Judges

Answer 1

• Due Process Clause requires jduges possess neither actual nor apparant bias
• Actial Bias - interests that would actually impair the judge’s impartiality

Question 2

Prosecutor

Answer 2

A. Four Primary Duties

1. Brady Doctrine - must turn over all materially exculpatory evidence to the defense

• Includes evidence that shows the defendant is not guiltty of the crime charges and evidence that would enable the defense to xx the credibility of prosecution witnesses
• Material - evidence is materialif disclosure could change the outcome of the proceeding

2. Prosecutor may not knowingly present false testimony
3. Prosecutor may not contact (or direct others to contact) a D outside the presernce of his counsel once 6A attaches
4. A prosecutor may not comment on a D’s failure to testify at trial or make unfair remarks about the D to the jury
   * a prosecutor may comment on a D’s pre-miranda, pre-custodial interrogation silence because the 5A right to remain silent must be affirmatively invoked; silence without an affirmative invocation of the right to remain silent can be commented on by a prosecutor

B. Prosecutorial Misconduct - such misconduct that has a reaonble possibility of affecting the verdict may require a mistrial or a reversal of a conviction

Question 3

Defense Counsel - Conflicts of Interest

Answer 3

Note - SCOTUS has held that 6A not only guarantees D the righ tto asistance of counsel, but guarantees them effective assitance of counsel

Issues

• Joint Representation - when lawyer represents several D’s at trial, and an actual conflict exists, the judge must warn the D’s that joint representation is a risk and has discretion to not allow the joint representation
• If a conflict of interest actually affects counsel’s behavior, there is a presumption of prejudice and D may obtain a new trial

Question 4

Defense Counsel - Effective Assitance

Answer 4

Two Part Test

1. Performance - did defense counsel’s performance fall below the wide range of objectively reasonable conduct that lawyers might engage in?
2. Prejudice - the deficient performance prejudiced the defendant becuase there is a reasonable probabilty that, had counsel performed effectively, the result would have been different

Cases that go to trial - D must show that there was a reaosnble probability that he would not have been convicted if the lawyer had done a proper job

Guilty Pleas - D must show that he would not have pleaded guilty if his lawyer had done a satisfactory job; its insufficient to show that an effective lawyer would have gotten a better plea deal; D must show that he would have gone to trial

Resuit - if D denied effecitve assistance, then conviction is reversed

Question 5

Defense Counsel - Choice of Counsel

Answer 5

D who can afford counsel can retain the counsel of their choice as long as the lawyer is:

1. properly admitted in the jurisdiction
2. available for trial and
3. no conflict or other reason to disqualify the lawyer

D who is denied the retained counsel is entitled to have his conviction reversed regardless of who actually represented him

If indingent, then not entiteld to appointment of lawyer of choice

Question 6

Defense - Proceeding Pro Se

Answer 6

D’s are entitled to waive the right to counsel and to represent themselves

Question 7

Ohio - Discovery

Answer 7

long list of what prosecutor must provide and what defense must provide; material info