Responsibilities of judges, prosecutors, and defense counsel Flashcards
Judges
The Due Process requires that judges have neither actual nor apparent bias.
Actual bias consists of interests that would impair the judge’s impartiality.
Brady doctrine: evidence relevant to guilt
Prosecutors must turn over all material exculpatory evidence to the defense, including that which tends to show that the defendant is not guilty of the crimes charged.
For example: evidence that calls into question a witness’s identification of the defendant.
Material evidence is that which could change the outcome of the case, including evidence within the control of the government and the police.
Brady doctrine: impeaching evidence
Prosecutors must turn over all material exculpatory evidence to the defense, including that which would enable the defense to impeach the credibility of prosecution witnesses.
For example: whether one of the government’s witnesses is testifying in exchange for lenience.
Material evidence is that which could change the outcome of the case, including evidence within the control of the government and the police.
Brady doctrine: guilty pleas
If the defendant pleads guilty after negotiations, the prosecution is not required to share Brady information.
Many states and some D.A.’s offices, however, maintain a open file policy allowing the defense to see Brady information.
Other responsibilities of the prosecutor
The prosecutor may not:
(1) Knowingly present false testimony;
(2) Contact, or direct others to contact, a defendant outside the presence of her counsel in contravention of her Sixth Amendment right to counsel; and
(3) Comment on a defendant’s failure to testify at trial or make unfair remarks about her to the jury in violation of her Fifth Amendment right to remain silent.
But a prosecutor can comment on a defendant’s silence before her Miranda rights attached.
Consequences of prosecutorial misconduct
Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a mistrial or reversal of a conviction.
Responsibilities of defense counsel: conflicts of interest
If a conflict of interest actually affects counsel’s behavior, there is a presumption of prejudice.
The defendant is not required to show actual innocence in order to obtain a new trial.
Responsibilities of defense counsel: Strickland test
The Strickland test assesses whether a defendant was denied effective assistance:
(1) Performance: whether defense counsel’s performance fell below the wide range of reasonable conduct that lawyers might engage in.
(2) Prejudice: whether there is a reasonable probability that, had counsel performed effectively, the result would have been different.
(a) For cases that go to trial:
The defendant must show that there was a reasonable probability that she would not have been convicted had the lawyer done a proper job;
(b) For guilty pleas:
The defendant must show that she would not have pleaded guilty had her lawyer not given her bad advice or had her lawyer performed effectively.
Defendants: right to choice of counsel
(1) Defendants who can afford retained counsel:
They are entitled to counsel of their choice so long as counsel:
(a) Is properly admitted in the jurisdiction, including pursuant to pro hac vice rules;
(b) Is available for trial; and
(c) Presents no conflict or other reason for disqualification.
A defendant who is denied retained counsel of her choice is entitled to have her conviction reversed.
(2) Indigent defendants:
They are not entitled to appointment of the lawyer of their choice.
The Constitution only guarantees competent assistance.
Defendants: right to proceed pro se
Defendants are entitled to waive the right to counsel and represent themselves so long as they do so knowingly and voluntarily.
The test is competence: whether the defendant understands what she is doing.
A defendant who proceeds pro se does not have a constitutional right to a “back-up” lawyer.
Responsibilities of defense counsel: Strickland and appeals
Although an appointed attorney is generally required to pursue a nonfrivolous appeal on behalf of an indigent defendant, in pursuing such an appeal, the attorney is not required to advance every nonfrivolous claim of error urged by the defendant, but may use his professional judgment in determining which claims of error to assert.
So long as this judgment is reasonable, the defense attorney’s conduct does not form a basis for ineffective assistance of counsel.
Responsibilities of defense counsel: motion for appointment of separate counsel
If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either:
(1) grant the motion; or
(2) at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances.
Failure of the judge to do so requires automatic reversal of a subsequent conviction. Holloway (U.S. 1978).
Responsibilities of defense counsel: joint representations
If there is an actual conflict arising from such a representation, the judge must warn the defendants that it is a risk and give them opportunity to get separate counsel.
If they choose not to do so, the judge must get an affirmative waiver from the defendants acknowledging the conflict and stating that they would prefer to go forward with the joint representation.
Responsibilities of defense counsel: waiver of conflict of interest
Although a criminal defendant may be permitted to waive a potential conflict of interest, the court is not required to accept such a waiver.
