When the prosecution makes requests for specific information, defense counsel should provide specific responses rather than merely a general acknowledgement of discovery obligations. A defense attorney who substitutes at a court proceeding for another attorney should be adequately informed about the case and issues likely to come up at the proceeding and should adequately prepare.
Counsel should then competently advise the client about lawful options and obligations.
Counsel may advise destruction of a physical item if its destruction would not obstruct justice or otherwise violate the law or ethical obligations. Counsel may not assist the client in conduct that counsel knows is unlawful, and should not knowingly and unlawfully impede efforts of law enforcement authorities to obtain evidence. Such circumstances may include:. A lawyer who is legally obligated to turn over such physical evidence should do so in a lawful manner that will minimize prejudice to the client.
Unless defense counsel has a legal obligation to disclose, produce, or dispose of such physical evidence, defense counsel may retain such physical evidence for a reasonable time for a legitimate purpose. Legitimate purposes for temporarily obtaining or retaining physical evidence may include: preventing its destruction; arranging for its production to relevant authorities; arranging for its return to the source or owner; preventing its use to harm others; and examining or testing the evidence in order to effectively represent the client.
If defense counsel determines that effective representation of the client requires that such physical evidence be submitted for forensic examination and testing, counsel should observe the following practices:. A permitting a prosecution expert to be present during preparation and testing of the evidence;.
D access to all raw data, notes and other documentation relating to the defense preparation and testing of the evidence. Counsel should maintain the evidence separately from privileged materials of other clients, and preserve it in a manner that will not impair its evidentiary value. Alternatively, counsel may deliver the evidence to a third-party lawyer who is also representing the client and will be obligated to maintain the confidences of the client as well as defense counsel.
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Courts and legislatures, as appropriate, should adopt procedures regarding defense handling of such physical evidence, as follows:. Before significant decision-points, and at other times if requested, defense counsel should advise the client with candor concerning all aspects of the case, including an assessment of possible strategies and likely as well as possible outcomes. Such advisement should take place after counsel is as fully informed as is reasonably possible in the time available about the relevant facts and law. Counsel should act diligently and, unless time does not permit, advise the client of what more needs to be done or considered before final decisions are made.
Counsel should attempt to distinguish for the client between legal advice and advice based on such other considerations. Counsel should advise the client to avoid any contact with jurors or persons called for jury duty; and to avoid either the reality or the appearance of any other improper activity. Determining whether a decision is ultimately to be made by the client or by counsel is highly contextual, and counsel should give great weight to strongly held views of a competent client regarding decisions of all kinds.
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Such decisions include how to pursue plea negotiations, how to craft and respond to motions and, at hearing or trial, what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what motions and objections should be made, what stipulations if any to agree to, and what and how evidence should be introduced. Such an attorney should be fully prepared about the matter, in order to offer such advice and in case the court and the accused determine that the full representation role should be transferred to defense counsel at some point during the criminal proceedings.
Counsel should investigate consequences under applicable federal, state, and local laws, and seek assistance from others with greater knowledge in specialized areas in order to be adequately informed as to the existence and details of relevant collateral consequences. Such advice should be provided sufficiently in advance that it may be fairly considered in a decision to pursue trial, plea, or other dispositions. Counsel should avoid any actions that might alert the government to information that could adversely affect the client.
Consultation or association with an immigration law expert or knowledgeable advocate is advisable in these circumstances. Public and appointed defenders should develop, or seek funding for, such immigration expertise within their offices. Counsel should be knowledgeable about possible dispositions that are alternatives to trial or imprisonment, including diversion from the criminal process.
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Before accepting or advising a disposition, defense counsel should request that the prosecution disclose any information that tends to negate guilt, mitigates the offense or is likely to reduce punishment. Although the presumption is that the record will be public, in some cases the record or a portion may be sealed for good cause or as required by applicable rule or statute.
Counsel should also consider and explain to the client how specific terms of an agreement are likely to be implemented. If a proposed disposition agreement contains such a waiver regarding ineffective assistance of counsel, defense counsel should ensure that the defendant has consulted with independent counsel regarding the waiver before agreeing to the disposition. In negotiations, counsel should request the prosecution to provide specific, individualized reasons for the inclusion of such waivers.
Counsel should also consult with the client about whether to object to such waivers in court. Defense counsel should demand that any such waiver include at the very least an exception for a subsequent showing of manifest injustice based on newly discovered evidence, or actual innocence. Final control over the scheduling of court appearances, hearings and trials in criminal matters should rest with the court rather than the parties.
When defense counsel is aware of facts that would affect scheduling, defense counsel should advise the court and, if the facts are case-specific, the prosecutor.
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In court as elsewhere, the defense counsel should not display or act out of any improper or unlawful bias. With regard to generalized matters requiring judicial discussion for example, case-management or administrative matters , defense counsel should invite a representative prosecutor to join in the discussion to the extent practicable. If defense counsel considers an order to be significantly erroneous or prejudicial, counsel should ensure that the record adequately reflects the events. Defense counsel has a right to make respectful objections and reasonable requests for reconsideration, and to seek other relief as the law permits.
Defense counsel should cooperate with courts and organized bar associations in developing codes of professionalism and civility, and should abide by such codes that apply in their jurisdiction. Absent special circumstances, such investigation should be restricted to review of records and sources of information already in existence and to which access is lawfully allowed. Defense counsel should not seek to commit jurors on factual issues likely to arise in the case, or to suggest facts or arguments that the defense counsel reasonably should know are likely to be barred at trial.
Defense counsel should avoid even the appearance of improper communications with jurors, and minimize any out-of-court proximity to or contact with jurors. Where out-of-court contact cannot be avoided, counsel should not communicate about or refer to the specific case. Defense counsel should know and comply with applicable rules and law governing the subject.
Counsel should consider requesting the court to instruct the jury that, if it is not prohibited by law, it is not improper for jurors to discuss the case with the lawyers, although they are not required to do so. Any decision to defer the opening statement should be fully discussed with the client, and a record of the reasons for such decision should be made for the file.
A deferred opening should focus on the defense evidence and theory of the case and not be a closing argument. Similarly, visual aids or exhibits that defense counsel intends to use during opening statement should be shown to the prosecutor in advance. If defense counsel is uncertain about the admissibility of evidence, counsel should seek and obtain resolution from the court before the hearing or trial if possible, and reasonably in advance of the time for proffering the evidence before a jury.
Defense counsel should make an adequate record for appeal, and consider the possibility of an interlocutory appeal regarding significant adverse rulings if available. Defense counsel should avoid displaying even admitted evidence in a manner that is unduly prejudicial. If defense counsel is unsure whether a particular witness will claim a privilege to not testify, counsel should alert the court and the prosecutor in advance and outside the presence of the jury.
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Defense counsel should, to the extent time permits, review the evidence in the record before presenting closing argument. Defense counsel should not knowingly misstate the evidence in the record, or argue inferences that counsel knows have no good-faith support in the record. Defense counsel should object and request relief from the court regarding prosecution arguments it believes are improper, rather than responding with arguments that counsel knows are improper.
When before a jury, defense counsel should not knowingly refer to, or argue on the basis of, facts outside the record, unless such facts are matters of common public knowledge based on ordinary human experience or are matters of which a court clearly may take judicial notice, or are facts that counsel reasonably believes will be entered into the record at that proceeding. In a nonjury context counsel may refer to extra-record facts relevant to issues about which the court specifically inquires, but should note that they are outside the record.
Defense counsel should refrain from public criticism of any participant. Public comments after a verdict or ruling should be respectful of the legal system and process. Defense counsel should not publicly gloat or seek personal aggrandizement regarding a verdict or ruling.
A motion for acquittal notwithstanding a verdict should be filed absent rare and unusual circumstances, and counsel should consider the strategic value of a motion for a new trial. Defense counsel should file only those motions that have a non-frivolous legal basis. Defense counsel should also consider whether consultation with an expert specializing in sentencing options or other sentencing issues is appropriate. The consequences including reasonably foreseeable collateral consequences of potential dispositions should be explained fully by defense counsel to the client.
Defense counsel should ensure that the accused understands the nature of the presentence investigation process, and in particular the significance of statements made by the accused to probation officers and related personnel.
http://gohu-takarabune.com/policy/camera-espi/myl-app-para-espiar.php Defense counsel should cooperate with court presentence officers unless, after consideration and consultation, it appears not to be in the best interests of the client. Counsel should also note on the record the intention to appeal, if that decision has already been made with the client. Defense counsel should also explain to the client the advantages and disadvantages of an appeal including the possibility that the government might cross-appeal, and the possibility that if the client prevails on appeal, a remand could result in a less favorable disposition.
Counsel should also be familiar with, and discuss with the client, possible interactions with other post-conviction procedures such as habeas corpus rules and actions. Defense counsel should consider engaging or consulting with an expert in criminal appeals in order to determine issues related to making a decision to appeal. Defense counsel should candidly explore with the client whether trial counsel is the appropriate lawyer to represent the client on appeal, or whether a lawyer specializing in appellate work should be consulted, added or substituted.
Counsel should consider raising on appeal even issues not objected to below or waived or forfeited, if in the best interests of the client. Counsel should advise the client about the probable and possible outcomes and consequences of a challenge to the conviction or sentence. However, counsel should not conclude that a defense appeal lacks merit until counsel has fully examined the trial court record and the relevant legal authorities. Counsel should endeavor to persuade the client to abandon a frivolous appeal, and to eliminate appellate contentions lacking in substance.
If the client ultimately demands that a no-merit brief not be filed, defense counsel should seek to withdraw. When counsel cannot continue without misleading the court, counsel may request permission to withdraw. If the client desires to raise an argument that is colorable, counsel should work with the client to an acceptable resolution regarding the argument.
Similarly, unless a retainer agreement provides otherwise, new counsel is substituted, or a court permits counsel to withdraw, appellate counsel should ordinarily continue to represent the client through all stages of a direct appeal, including review in the United States Supreme Court. If the prosecution is appealing, defense counsel should consider adding or consulting with an appellate expert about the matter.
If the prosecution files an interlocutory appeal, defense counsel should act in accordance with the foregoing paragraphs. Counsel should explicitly label federal constitutional arguments as such, in order to preserve later federal litigation options. Before filing the brief, appellate counsel should ordinarily examine the docket sheet, all transcripts, trial exhibits and record documents, not just those designated by another lawyer or the client. Appellate counsel should seek by appropriate motion, filed in either the trial or the appellate court, to make available for the appeal any necessary, relevant extra-record matters.
Appellate counsel should present directly adverse authority in the controlling jurisdiction of which counsel is aware and that has not been presented by other counsel in the appeal. If after consultation the client desires to attend the argument, counsel should help the client to be present. If the client is in custody, counsel should request a tape or transcript of the oral argument, and consider filing a motion for the government to transport client to the argument.
Counsel should also learn the rules, if any, of the particular jurisdiction regarding this issue. Counsel must consider, and act in accordance with, duties of confidentiality. Counsel should determine whether -- and if so, how best -- to notify the prosecution and court of such evidence. Appellate defense counsel should assist the client to the extent practicable in locating competent counsel for any post-appellate collateral proceedings.
Prior counsel should provide such assistance as is possible, including providing the file or copies of the file to post-appellate counsel. Unless the client clearly wants counsel to continue, counsel in this situation should seek to withdraw from further representation of the client with an explanation to the court of the reason, consistent with the duty of confidentiality to the client.
Counsel should recommend that the client consult with independent counsel if the client desires counsel to continue with the representation. Counsel should continue with the representation only if the client so desires after informed consent and such further representation is consistent with applicable conflict of interest rules.
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