Boalt – Legal Profession
Twelfth Week – Criminal Litigation; Counseling; Evaluator
November 13, 2012
FAQ’s / All Students ReadEx. 12.2 / Excerpts from ABA Standards (The Defense Function) / All read; no cold call
Ex. 12.3 / Prosecutors in their Own Words / All Read; S-Z ready to discuss
Ex. 12.4 / PD Rant / All Read; A-C ready to discuss
Ex. 12.5 / What Can (Should) (Must) Defense Counsel Do when Accused of Ineffective Assistance of Counsel? / All read; D-J ready to discuss
Note! This is a PDF handout available at the course site/
Ex. 12.6 / Counseling at the Limits of Law / All read; K-L ready to discuss!
Read MR 3.1 – 3.9
12. Criminal Litigation
12.1 Frequently Asked Questions
(12.1.1): Do the Model Rules apply to criminal litigation?
Yes, they do. Rule 3.8 regulates prosecutors, and there are a few sentences and comments dealing with criminal defense lawyers, such as the second sentence of 3.1 and the provisions in 3.3(a) that deal only with criminal defense.
(12.1.2): What else supplies the “law of lawyering” in the context of criminal litigation? (And how is that different from the non-criminal context?)
The field of criminal litigation has several bodies of governing besides the ethics rules. For example, the protections in the Bill of Rights can set a minimum floor for the level of lawyering that a criminal defendant must receive and can set limits on the behavior of prosecutors. Prosecutors can be subject to guidelines and policies set internally within a prosecutor’s office or by the state or federal agencies. And the ABA has an entire set of standards for criminal litigation that go beyond the Model Rules.
(12.1.3): What practical realties affect how criminal litigation plays out?
Despite what the rules say, many (most?) observers believe that he prosecutor has nearly all the power and control in criminal litigation. This “uneven playing field” has enormous impacts on how particular prosecutions play out. On top of that, the criminal defendants often lack money to hire lawyers and to incent lawyers to mount vigorous defenses. Public defenders can be burdened by enormous caseloads, effectively preventing them from mounting formidable defenses in many cases.
(12.1.4): What rules apply to the prosecutorial function?
The Constitution, the ethics rules, the ABA Standards, and the case law all agree: the prosecutor should act as a minister of justice, seeking just results. (Whether or not they act that way in any particular case is a different question.) Whereas a civil litigator can seek any advantageous result so long as the lawyer follows the rules and plays fair, the prosecutor must seek only those results that are just. So, for example, if the prosecutor believes the defendant did the crime but that it cannot be proven beyond a reasonable doubt, the prosecutor is supposed to dismiss the matter.
(12.1.5): What rules apply to the criminal defense function?
If you read the rules carefully, and with some knowledge of how the defense function works, you will realize that so long as the defense lawyer doesn’t offer false evidence, she may offer a case theory she knows to be false. We will explain this in class.
(12.1.6): What recent developments have arisen in this field?
Rule 3.8 has two new paragraphs dealing with a prosecutor’s duties after convictions to respond to evidence that tends to exonerate the convicted. There is a current controversy about how well—or how poorly—we support the roles of public defenders. We also have a recent US Supreme Court holding that part of the Sixth Amendment promise of “effective assistance of counsel” requires criminal defense counsel to advise the client of the effect of plea bargains on the deportation status of the accused. (Padilla v. Kentucky)
12.2. ABA Standards for Criminal Justice (Defense) (excerpts)
Standard 4–3.2 Interviewing the Client
(a) As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.
History of Standard
There are stylistic revisions only.
Related Standards
ABA Standards for Criminal Justice 4–3.1(a) (3d ed. 1993)
Commentary
Securing Facts from the Client
The client is usually the lawyer's primary source of information for an effective defense. An adequate defense cannot be framed if the lawyer does not know what is likely to develop at trial. The lawyer needs to know essential facts, including the events surrounding the act charged, information concerning the defendant's background, and the defendant's record of prior convictions, if any. In criminal litigation, as in other matters, information is the key guide to decisions and action. The lawyer who is ignorant of the facts of the case cannot serve the client effectively.[1]
The client, whether innocent or guilty, often knows facts that may tend to be incriminating. For example, though the defendant may be innocent, he or she may have been near the scene of the crime at the time it was committed and, hence, may be reluctant to disclose that fact to the lawyer for fear the lawyer will lose confidence in his or her innocence and thus fail to pursue the case zealously. The lawyer must recognize this reluctance and overcome it in order to obtain the facts necessary for an effective defense.
Defense counsel has sometimes been depicted as following the strategy of informing the client of the legal consequences of various factual situations in order to influence the client to adopt the factual version most favorable to a legal defense, for example, the claim of insanity.[2] A lawyer who follows this course handicaps an effective defense by promoting ignorance of facts that may ultimately be revealed at trial.
Calculated Ignorance of Facts by the Lawyer
The most flagrant form of “intentional ignorance” on the part of defense lawyers is the tactic of advising the client at the outset not to admit anything to the lawyer that might handicap the lawyer's freedom in calling witnesses or in otherwise making a defense. This tactic is most unfortunate in that the lawyer runs the risk of being the victim of surprise at trial. A lawyer should make clear to the client the imperative need to know all aspects of the case; the lawyer should explain that all of the client's statements and those of other witnesses must be fully investigated. To secure candid disclosure from the client of facts that are often both incriminating and embarrassing, the client must be sure that these facts will not be divulged by the lawyer. Accordingly, the client should be given an explanation of the extent of the privileged status of all information revealed to counsel.[3]
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12.3. Prosecutors in Their Own Words (Baker)
Chapter Three: Tactics
After all the plea agreements are made—which accounts for 85 to 90 percent of the prosecutor's caseload—he or she is left with, the cases that must be taken to trial. It's not easy to win a jury trial. According to Newman Flanagan, executive director of the National District Attorneys' Association and the president of the American Prosecutors' Research Institute, the conviction rate in jury trials for prosecutors nationwide averages only about 62 percent. "You ask the public what the conviction rate is in jury trials," laughs the former district attorney of Boston, Massachusetts, "and they will say it's upwards from 90 percent. When they hear that 62 percent figure, they go, 'My God! That's outrageous. Half of them are getting away.'
"I tell them, 'Wait a minute, you don't think this defendant is trying his case because we caught him red-handed in the store he robbed, do you? No, this guy is trying his case because there is merit to a potential not-guilty verdict. This guy knows he's got a shot.' "
The defendant and his counsel know "he's got a shot" because of disclosure. Rules of discovery or disclosure in state judicial systems require both the prosecution and the defense to reveal all the evidence and witnesses that will be introduced at trial. Both sides know exactly who will testify, and often what they will say. Both sides know what the jury will see, and when they will see it.
Ah, for the good old days before the majority of the states changed their criminal codes, when there was no discovery, and a prosecutor didn't have to tip his hand by giving up all his evidence and witnesses to the defense counsel before the trial. The writers for the old Perry Mason television programs got it all wrong. In the real world, Perry would have been the ambushed lawyer in the courtroom, sitting at the defense table with his mouth opening and closing like a beached fish as the district attorney, Mr. Burger, called a surprise witness, introduced new evidence, or started a totally unexpected line of questioning that confirmed the guilt of the defendant beyond a reasonable doubt. A former prosecutor who is now on the bench reminisces about that glorious era:
"The defense attorney had to work an awful lot harder to find out anything about his case. He wasn't being handed the prosecutor's file. There were only a couple of sources of information for the defense. It was common then, and almost never happens now, that preliminary hearings were held in criminal cases before the matter even went to the grand jury, so there was a limited amount of discovery that was done there. At least some of the witnesses testified under oath, and there was some indication as to what was going on in the prosecutor's case.
"There were also some defense attorneys who had pretty close friends on the law enforcement agencies—either the police department or the sheriff's department. Those who did a lot of criminal practice would also handle the divorces for the cops and build a relationship with them, so they would get a lot more information than we were willing to give them.
"The greatest tool that was used by both sides in our area was True Detective magazine. One of the local court reporters was paid a penny a word to write his own lurid version of these crimes for the tabloids, and there would be more about our cases in the magazine than there were in either the prosecution or the defense case files. His stories always came out before the trial and had amazing things in them. He would have photographs of the evidence and interviews with the defendants. So we always went out to buy a copy and put it in our briefcases. If you didn't have a copy, then you were incompetent counsel.
"Not having the discovery was a lot of fun for prosecutors. Since you weren't tipping your hand and telling them everything about the case, you were allowed to spring great surprises on these people.
"For instance, one day I had a burglary case. I was talking to the defense attorney the day of trial, and I said, 'I don't understand why this guy's not pleading guilty. We made him a reasonable offer.'
"'Oh no, no, he's totally innocent,' the defense attorney says.
"'I might as well tell you now. I've got fingerprints inside the residence. That places him in there.'
"He walked back to the counsel table, whispered to his client for a while, came back, and said, 'Oh, he can explain those fingerprints. He had visited there on a couple of occasions. The baby-sitter had him over. He knew her and had been in the house in the living room, so his fingerprints being there is no problem.'
"So I reached down in a bag and pulled an item out and threw it on the counsel table. He said, 'What's that?'
"'It's the dryer vent from the basement window that was ripped out. His fingerprints are impressions in the lint of the vent, a set of eight prints. Is that how he visited the baby-sitter every time he went over?' The guy pled guilty then.
"All of a sudden, here comes the evidence in the case, which would come as a terrible shock to them. So those days were fun."
Those days may have been fun, but the results were often unfair and generally inefficient. The crime rate outstripped the ability of the system to handle cases in the 1960s and 1970s. At the same time, taking their lead from the Supreme Court dominated by Justice Earl Warren, the public became aware of the fundamental inequity of trial by ambush. As a result, the majority of the states instituted changes in their criminal and civil codes, making disclosure a part of the defendant's basic rights in trial. The introduction of discovery was perhaps the most momentous change in criminal prosecution in the last hundred years. A longtime defense lawyer, with over thirty years' experience practicing in a primarily rural part of a Southern state, remembers the very first time he filed a motion for discovery:
"The first time I introduced a motion for disclosure, what we call a motion for discovery, was in 1971. Frank Jenkins, the state attorney was at his raging, steaming best back in those days. I presented the motion to him right in front of old Judge Harper, and Frank Jenkins said, 'What is this, some ACLU trick?'
"The judge boomed from the bench, 'No, Frank! These are the new rules of criminal procedure, and you're going to abide by them!' That probably was the death knell for the old-style-fire-and-brimstone political animals. He didn't believe in giving out the names of his witnesses, which meant giving away his case as far as he was concerned. Of course, the end result has been very beneficial, because there are no more surprises. Everybody knows in advance exactly who's going to testify for the state and for the defendant. Prosecutors go out and interview the defendant's witnesses. As far as efficiency in prosecution, there are more pleas now, because it's easier to assess the vulnerability or the strength of the state's case. You don't have to try them all, and they couldn't do that anyway these days. There are just too many cases."