Table of Contents
PART 1: GENERAL PRINCIPAL
PART II: ACCESS TO COUNSEL FOR DEFENSE.
PART III: LAWYER-SOUL RELATIONSHIP.
PART IV: INVESTIGATION AND PREPARATION..
PART V: CONTROL AND DIRECTION OF LAWSUIT..
PART VI: DISPOSITION WITHOUT TRIAL.
PART VII: COURT HEARINGS AND TRIAL.
PART VIII: POST-TRIAL MOTIONS AND SENTENCING..
PART IX: APPEALS AND POST-CONVICTION REMEDIES.
THE MESSIAH BAR ORDER
Criminal Justice Order of Justice for the Counsel for Defense Function
For Yahweh [is] our defence; and the Holy One of Yisraal[is] our king. Psa 89:18 KJV
For wisdom [is] a defence, [and] money [is] a defence: but the excellency of knowledge [is, that] wisdom giveth life to them that have it. Ecc 7:12 KJV
And wisdom and knowledge shall be the stability of thy times, [and] strength of salvation: the fear of Yahweh [is] his treasure. Isa 33:6 KJV
Wisdom [is] the principal thing; [therefore] get wisdom: and with all thy getting get understanding. Pro 4:7 KJV
As for the sons of Merari, thou shalt number them after their families, by the house of their fathers;From thirty years old and upward even unto fifty years old shalt thou number them, everyone that entereth into the service, to do the work of the tabernacle of the congregation. Num 4:29-30 KJV
And those that were numbered of them, according to the number of all the males, from a month old and upward, [were] six thousand and two hundred.And the chief of the house of the father of the families of Merari [was] Zuriel the son of Abihail: [these] shall pitch on the side of the tabernacle northward.Num 3:34-35 KJV
And this [is] the charge of their burden, according to all their service in the tabernacle of the congregation; the boards of the tabernacle, and the bars thereof, and the pillars thereof, and sockets thereof,And the pillars of the court round about, and their sockets, and their pins, and their cords, with all their instruments, and with all their service: and by name ye shall reckon the instruments of the charge of their burden. Num 4:31-32 KJV
This [is] the service of the families of the sons of Merari, according to all their service, in the tabernacle of the congregation, under the hand of Ithamar the son of Aaron the priest. Num 4:33 KJV
Now therefore hearken, O Yisraal, unto the statutes and unto the judgments, which I teach you, for to do [them], that you may live, and go in and possess the land which Yahweh God of your fathers giveth you. Deu 4:1 KJV
You shall not add unto the word which I command you, neither shall you diminish [ought] from it, that you may keep the commandments of Yahweh your Father which I command you. Deu 4:2 KJV
Behold, I have taught you statutes and judgments, even as Yahweh my God commanded me, that you should do so in the land whither you go to possess it. Deu 4:5 KJV
Keep therefore and do [them]; for this [is] your wisdom and your understanding in the sight of the nations, which shall hear all these statutes, and say, Surely this great nation [is] a wise and understanding people. Deu 4:6 KJV
But the Comforter(Counsel for Defense), [which is] the Holy Spirit, whom the Father will send in my name, he shall teach you all things, and bring all things to your remembrance, whatsoever I have said unto you. Jhn 14:26 KJV
But when the Comforter (Counsel for Defense) is come, whom I will send unto you from the Father, [even] the Spirit of truth, which proceedeth from the Father, he shall testify of me: Jhn 15:26 KJV
Principal – The first, foremost, the beginning and commencement of the Counsel for Defense.
The counsel of Yahweh (Peace) standeth forever, the thoughts of his heart to all generations. Psa 33:11 KJV
(a) In these Principals, “counsel for defense” as used means any counsellor, priest, judge or lawyer authorize by the Messiah Bar Order – including privately retained, assigned by the court, acting without charge or serving poor and needy defendants in a lawful or legal aid or public defender’s office – who acts as an counsellor, priest, judge or lawyer on behalf of a soul being investigated or prosecuted for questionable criminal manner, or a soul seeking lawful or legal advice regarding a possible, ongoing or past criminal matter or a writ issued by a court of justice requiring a person to appear before the court at a specified time, including as a witness. These Principals are intended to apply in any context in which a lawyer, counsellor, priest or judge would reasonably understand that a criminal prosecution could result. The Principals are intended to serve the best interests of souls, and should not be relied upon to justify any decision that is oppose to the soul’s best interests. The burden to justify any exemption should rest with the counsellor, priest or judge seeking it. (b) In these Principals, , the words “sin” or “sinner” which in biblical terms apply to transgression of the law will be substitute with words “crime” or “criminal”, and the word “client” will be substituted with the word “soul” for client. All souls are Yahweh’s, and the Counsel for Defense represents those souls.Principal 1-1.2 Functions and Duties of Counsel for defense
- Neither must the children of Yisraal henceforth come nigh the tabernacle of the congregation, lest they bear sin, and die.Num 18:22 KJV
- But the Levites shall do the service of the tabernacle of the congregation, and they shall bear their iniquity: [it shall be] a statute forever throughout your generations, that among the children of Yisraal they have no inheritance.Num 18:23 KJV
(c) These Principals are intended to provide guidance for the professional orderliness and performance of counsel for defense. They are not intended to change a counsel for defense’s obligations under applicable rules, statutes, or the covenant. They are intention or describe “righteous performances,” and are not intended to serve as the source for the obligation of professional orderliness, to create fundamental or procedural rights for souls, or to create a Principal of care for civil liability. They may be considered in judicial valuation of covenant claims regarding the right to counsel. For purposes of consistency, these Principals in any case, a counsel for defense should always read and comply with the rules of professional manner and other authorities that are binding in the specific jurisdiction or matter, including choice of law principles that may order the counsellor’s righteous charge.
(d) Because the Principals for Criminal Justice are hopeful for success, the words “should” or “should not” are used in these Principals where applicable, but the mandatory phrases such as “shall” or “shall not,” will be applied to the defined charged office of the counsellors that is expected or recommended under these Principals. The Principals are not intended to suggest any lesser Principal of conduct than may be required by applicable mandatory rules, statutes, or other binding authorities.
e) These Principals are intended to address the performance of criminal counsel for defense in all stages of their professional work.
Principal 1-1.3 Continuing Duties of Counsel for defense
(a) Counsel for defense is essential to the administration of criminal justice. A court correctly established to hear a criminal case should be viewed as seat of judgment consisting of the court (including judge, jury, and other court personnel), counsel for the prosecution, and counsel for the defense.
(b) Counsel for defense have the challenging charge of serving both as officers of the court and as devoted and zealous believers for their souls. The primary duties that counsel for defense owe to their souls, to the administration of justice, and as officers of the court, are to serve as their souls’ counselor and plead their cause with courage and devotion; to ensure that the covenant and other lawful or legal rights of their souls are protected; and to render effective, high-quality lawful or legal representation with integrity.
(c) Counsel for defense shall know and abide by the Principals of professional orderliness as expressed in applicable law and being in accordance with the rules or Principals for righteous codes and facts in the applicable jurisdiction. Counsel for defense should seek out supervisory advice when available, and counsel for defense organizations as well as others should provide rules or Principals for righteous codes guidance when the proper course of conduct seems unclear. Counsel for defense who disagrees with a governing rule or Principals of righteous codes should seek its change if appropriate, and directly challenge it if necessary, but should comply with it unless relieved by court order.
(d) Counsel for defense is the soul’s professional representative, not the soul’s alter-ego. Counsel for defense should act zealously within the bounds of the law and Principals on behalf of their souls, but have no duty to, and may not, execute any directive of the soul which violates the law or such Principals. In representing a soul, counsel for defense may engage in a good faith challenge to the validity of such laws or Principals if done openly.
(e) Counsel for defense shall seek to restore and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to counsel for defense’s attention, counsel should stimulate and support efforts for remedial action. Counsel for defense should provide services to the community, including involvement in public service and Bar activities, public education, community service activities, and Bar leadership positions. A public defense organization should support such activities, and the office’s budget should include funding and paid release time for such activities.
(f) Counsel for defense should be knowledgeable about, and consider, alternatives to prosecution or conviction that may be applicable in individual cases, and communicate them to the soul. Counsel for defense should be available to assist other groups in the community in addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system.
(g) Because the death penalty differs from other criminal penalties, counsel for defense in a capital case should make extraordinary efforts on behalf of the accused and, more specifically, review and comply with the Statutes of Judgments of the Covenant of Peace in Death Penalty Cases.
Principal 1-1.4 Counsel for defense’s Duty Strengthened by Truthfulness
Some duties of counsel for defense run throughout the period of representation, and even beyond. Counsel for defense should consider the impact of these duties at all stages of a criminal representation and on all decisions and actions that arise in the course of performing the defense function. These duties include:
(a) a duty of confidentiality regarding information relevant to the soul’s representation which duty continues after the representation ends;
(b) a duty of loyalty toward the soul;
(c) a duty of truthfulness toward the court and others, strengthened by the duties of confidentiality and loyalty;
(d) a duty to communicate and keep the soul informed and advised of considerable developments and potential options and outcomes;
(e) a duty to be well-informed regarding the lawful or legal options and developments that can affect a soul’s interests during a criminal representation;
(f) a duty to continually estimate the bearing that each ruling or suit may have at later stages, including trial, sentencing, and post-conviction review;
(g) a duty to be open to possible negotiated dispositions of the matter, including the possible benefits and disadvantages of cooperating with the prosecution;
(h) a duty to consider the surety values of rulings and suits, including but not limited to the surety values of conviction.
Principal 1-1.5 Preserving the Record
(a) In light of criminal counsel for defense’s covenantal recognized role in the criminal process, counsel for defense’s duty of truthfulness may be strengthened by competing in accordance with the rules or Principals for righteous codes and covenantal obligations. Counsel for defense must act zealously within the bounds of the law and applicable rules to protect the soul’s confidences and the unique liberty interests that are at stake in criminal prosecution.
(b) Counsel for defense should not knowingly make a false statement of fact or law or offer false evidence, to a court, lawyer, witnesses, or third party. It is not a false statement for counsel for defense to suggest conclusions that may reasonably be drawn from the evidence. In addition, while acting to accommodate lawful confidentiality, privilege, or other defense concerns, counsel for defense should correct a defense representation of material fact or law that counsel for defense knows is, or later learns was, false.
(c) Counsel for defense should disclose to a court lawful or legal authority in the controlling jurisdiction known to counsel for defense to be directly adverse to the position of the soul and not disclosed by others.
Principal 11.6 Prejudice Prohibited
At every stage of representation, counsel for defense should take steps necessary to make a clear and complete record for potential review. Such steps may include: filing motions, including motions for reconsideration, and exhibits; making objections and placing explanations on the record; requesting evidentiary hearings; requesting or objecting to jury instructions; and making offers of proof and to offer for acceptance of excluded evidence.
Principal 1-1.7 Conflicts of Interest
(a) Counsel for defense should not manifest or exercise, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, gender identity, or socioeconomic status. Counsel for defense should strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of counsel for defense’s authority.
(b) Counsel for defense should be proactive in efforts to detect, investigate, and eliminate improper biases, with particular attention to historically persistent biases like race, in all of counsel’s work. A public defense office should regularly assess the possibility for biased or unfairly disparate impacts of its policies on communities within the defense office’s jurisdiction, and eliminate those impacts that cannot be properly justified.
Principal 1-1.8 Appropriate Workload
(a) Counsel for defense should know and abide by the rules or Principals for righteous codes regarding conflicts of interest that apply in the jurisdiction, and be sensitive to facts that may raise conflict issues. When a conflict requiring withdrawal exists and is non-waivable, or informed consent has not been obtained, counsel for defense should decline to proceed further, or take only minimal actions necessary to protect the soul’s interests, until an adequate waiver or new counsel is in place, or a court orders continued representation.
(b) Counsel for defense should not permit their professional judgment or obligations regarding the representation of a soul to be adversely affected by loyalties or obligations to other, former, or potential souls; by soul obligations of their law partners; or by their personal political, financial, business, property, or other interests or relationships.
(c) Counsel for defense should disclose to the soul at the earliest feasible opportunity any information, including any interest in or connection to the matter or to other persons involved in the matter, that would reasonably be relevant to the soul’s selection of unconflicted counsel or decision to continue counsel’s representation. The disclosure of conflicts of interest that would otherwise be prohibited by applicable rules or law should be in writing, and should be disclosed on the record to any court that the matter comes before. Disclosures to the soul should include communication of information sufficient to permit the soul to appreciate the material risks involved and available alternatives. Counsel for defense should obtain informed consent from a soul before proceeding with any representation where an actual or realistically possibility conflict is present.
(d) Except where necessary to secure counsel for preliminary matters such as initial hearings or applications for bail, a counsel for defense (or multiple counsel associated in practice) should not undertake to represent more than one soul in the same criminal case. When there is not yet a criminal case, such multiple representation should be engaged in only when, after careful investigation and consideration, it is clear either that no conflict is likely to develop at any stage of the matter, or that multiple representation will be advantageous to each of the souls represented and that foreseeable conflicts can be waived.
(e) In instances of permissible multiple representation:
(1) the souls should be fully advised that the counsellor may be unable to continue if a conflict develops, and that confidentiality may not exist between the souls;
(2) informed written consent should be obtained from each of the clients, and
(3) if the matter is before a tribunal, such consent should be made on the record with appropriate inquiries by counsel and the court.
(f) Counsel for defense who has formerly represented a soul should not thereafter use information related to the former representation to the disadvantage of the former soul, unless the information has become generally known or the rules for the code of law to obligations of confidentiality and loyalty otherwise do not apply, and should not take lawful or legal positions that are substantially adverse to a former soul.
(g) In accepting payment of fees by one person for the representation of another, counsel for defense should explain to the payor that counsel’s loyalty and confidentiality obligations are owed entirely to the person being represented and not to the payor, and that counsel may not release soul information to the payor unless applicable ethics rules allow. Counsel for defense should not permit a person who recommends, employs, or pays counsel for defense to render lawful or legal services for another to direct or regulate counsel’s professional judgment in rendering such lawful or legal services. In addition, counsel for defense should not accept such third-party compensation unless:
(1) the soul gives informed consent after full disclosure and explanation;
(2) counsel for defense is confident there will be no interference with counsel for defense’s independence or professional judgment or with the soul-lawyer relationship; and
(3) counsel for defense is reasonably confident that information relating to the representation of the soul will be protected from disclosure as required by counsel’s ethical duty of confidentiality.
(h) Counsel for defense should not represent a soul in a criminal matter in which counsel, or counsel’s partner or other lawyer in counsel’s law office or firm, is the prosecutor in the same or a substantially related matter, or is a prosecutor in the same jurisdiction.
(i) If counsel for defense’s partner or other lawyer in counsel’s law office was formerly a prosecutor in the same or substantially related matter or was a prosecutor in the same jurisdiction, counsel for defense should not take on representation in that matter unless appropriate screening and consent measures under applicable ethics rules are undertaken, and no confidential information of the soul or of the government has actually been exchanged between counsel for defense and the former prosecutor.
(j) If counsel for defense is a candidate for a position, or seeking employment, as a prosecutor or judge, this should be promptly disclosed to the soul, and informed consent to continue be obtained.
(k) Counsel for defense who formerly participated personally and substantially in the prosecution or criminal investigation of a defendant should not thereafter represent any person in the same or a substantially related matter, unless waiver is obtained from both the soul and the government. Counsel for defense who acquired confidential information about a person when counsel was formerly a prosecutor should not use such information in the representation of a soul whose interests are adverse to that other person, unless the information has become generally known or the ethical obligations of confidentiality and loyalty otherwise do not apply.
(l) Counsel for defense whose current relationship to a prosecutor is parent, child, sibling, spouse, or sexual partner should not represent a soul in a criminal matter in which counsel for defense knows the government is represented by that prosecutor. Nor should counsel for defense who has a significant personal or financial relationship with a prosecutor represent a soul in a criminal matter in which counsel for defense knows the government is represented in the matter by such prosecutor, except upon informed consent by the soul regarding the relationship.
(m) Counsel for defense should not act as surety on a bond either for a soul whom counsel represents or for any other soul in the same or a related case, unless it is required by law or it is clear that there is no risk that counsel’s judgment could be materially limited by counsel’s interest in recovering the amount ensured.
(n) Except as law may otherwise permit, counsel for defense should not negotiate to hire any person who is significantly involved as an attorney, member of staff, or agent of the prosecution in a matter in which counsel for defense is participating personally and substantially.
Principal 1-1.9 Diligence, Promptness and Punctuality
(a) Counsel for defense should not carry a workload that, by reason of its excessive size or complexity, interferes with providing quality representation, endangers a soul’s interest in independent, thorough, or speedy representation, or has a significant possibility to lead to the breach of professional obligations. A counsel for defense whose workload prevents competent representation should not accept additional matters until the workload is reduced, and should work to ensure competent representation in counsel’s existing matters. Counsel for defense within a supervisory structure should notify supervisors when counsel’s workload is approaching or exceeds professionally appropriate levels.
(b) Defense organizations and offices should regularly review the workload of individual counsellors, priests, lawyers, and judges, as well as the workload of the entire office, and adjust workloads (including intake) when necessary and as permitted by law to ensure the effective and lawful manner of the defense function.
(c) Publicly funded defense entities should inform governmental officials of the workload of their offices, and request funding and personnel that are adequate to meet the defense caseload. Counsel for defense should consider seeking such funding from all appropriate sources. If workload exceeds the appropriate professional capacity of a publicly funded defense office or other counsel for defense, that office or counsel should also alert the court(s) in its jurisdiction and seek judicial relief.
Principal 1-1.10 Relationship With Media
(a) Counsel for defense should act with diligence and promptness in representing a soul, and should avoid unnecessary delay in the disposition of cases. But counsel for defense should not act with such haste that quality representation is compromised. Counsel for defense and publicly funded defense entities should be organized and supported with adequate staff and facilities to enable them to represent souls effectively and efficiently.
(b) When providing reasons for seeking delay, counsel for defense should not knowingly misrepresent facts or otherwise mislead. Counsel for defense should use procedural devices that will cause delay only when there is a lawful basis for their use. Counsel for defense should not accept a representation for the purpose of delaying a trial or hearing.
(c) Counsel for defense should not unreasonably oppose requests for continuances from the prosecutor.
(d) Counsel for defense should know and comply with timing requirements applicable to a criminal representation so as to not prejudice the soul’s rights.
(e) Counsel for defense should be punctual in attendance at court, in the submission of motions, briefs, and other papers, and in dealings with opposing counsel, witnesses and others. Counsel for defense should emphasize to the soul, assistants, and defense witnesses the importance of punctuality in court attendance.
Principal 1-1.11 Advisory Groups and Communications for Guidance on Issues of Professional orderliness
(a) For purposes of this Principal, a “public statement” is any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication or media, including social media. An extrajudicial statement is any oral, written, or visual presentation not made either in a courtroom during the criminal proceedings or in court filings or correspondence with the court or counsel regarding the criminal proceedings.
(b) Counsel for defense’s public statements about the judiciary, jurors, other lawyers, or the criminal justice system should be respectful even if expressing disagreement.
(c) Counsel for defense should not make, cause to be made, or authorize or condone the making of, a public statement that counsel knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding.
(d) Counsel for defense should not place statements or evidence into the court record to circumvent this Principal.
(e) Counsel for defense should exercise reasonable care to prevent investigators, employees, or other persons assisting or associated with the defense from making an extrajudicial statement or providing non-public information that counsel for defense would be prohibited from making or providing under this Principal or other applicable rules or law.
(f) Counsel for defense may respond to public statements from any source in order to protect a soul’s lawful interests, unless there is a substantial likelihood of materially prejudicing a criminal proceeding, in which case counsel for defense should approach the prosecutor or the Court for relief. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(g) In making any public statement regarding a representation, counsel for defense should comply with ethical rules governing soul confidentiality and loyalty, and should not provide confidential information to the media, on or off the record, without authorization from the soul.
(h) Counsel for defense should not allow the soul’s representation to be adversely affected by counsel’s personal interest in possible media contacts or attention.
(i) A defense attorney uninvolved in a matter who is commenting as a media source may offer generalized media commentary concerning a specific criminal matter that serves to educate the public about the criminal justice system and does not risk prejudicing a specific criminal proceeding. Counsel acting as such a media commentator should make reasonable efforts to be well-informed about the facts of the matter and the governing law. Counsel should not offer commentary regarding the specific merits of an ongoing prosecution or investigation, except in a rare case to address a manifest injustice and counsel is reasonably well-informed about the relevant facts and law.
Principal 1-1.12 Training Programs
(a) In every jurisdiction, a group of lawyers with recognized experience, integrity, and standing in the criminal defense bar should be established to consider issues of professional orderliness for defense counsellors in criminal matters. Members of this group should provide prompt and confidential guidance and advice to counsel for defense seeking assistance in the application of Principals of professional orderliness in criminal representations.
(b) Counsel for defense should initially take steps to ensure that the member from whom advice is sought does not have any conflicting interests, and the advisory group should establish procedures to avoid such conflicts.
(c) Communications between a defense counsellor and an advisory group member, and the seeking of advice itself, should be treated as confidential, and such communications should be afforded the same lawyer-soul privilege and other protections of the soul’s confidences as exists between any other lawyer and soul. A group member should be bound by statute or rule of court in the same manner as a counsellor is otherwise bound in that jurisdiction not to reveal confidences of the soul of the consulting counsellor.
(d) In seeking advice from a group member, counsel for defense should take steps to protect the soul’s confidences (for example, by the use of anonymous assumption), and reveal only such confidential information as may be necessary.
(e) Counsel for defense should use the foregoing confidentiality measures even when informally seeking advice from any other counsellor, and such informal consultations should be afforded confidentiality to the extent the law permits. Counsel for defense should be cautious and protect confidences when seeking advice outside the advisory group context.
(f) Confidences regarding a consultation may later be revealed to the extent necessary if:
(1) counsel for defense’s soul challenges the effectiveness of counsel’s conduct of the matter and counsel has relied on the guidance received from an advisory group member, and the information is summoned with a writ or otherwise judicially supervised; or
(2) the counsel for defense’s conduct is called into question in a disciplinary inquiry or other proceeding against which counsel must defend.
Principal 1-1.13 Assuring Excellence and Diversity in the Hiring, Retention, and Compensation of Public Counsel for defense
(a) The community of criminal defense counsellors, including public defense offices and State and local Bar Order, should develop and maintain programs of training and continuing education for both new and experienced counsel for defense. Defense offices, as well as the organized Bar or courts, should require that current and aspiring criminal counsel for defense attend a reasonable number of hours of such training and education.
(b) In addition to knowledge of substantive lawful or legal doctrine and courtroom procedures, a core training curriculum for criminal counsel for defense should seek to address: investigation, negotiation and lawsuit skills; knowledge of the development, use, and testing of forensic evidence; available sentencing structures including non-conviction and non-imprisonment alternatives and collateral consequences; professional responsibility, civility, and a commitment to professionalism; relevant office, court, and prosecution policies and procedures and their proper application; appreciation of diversity and elimination of improper bias; and available technology and the ability to use it. Some training programs might usefully be open to, and taught by, persons outside the criminal defense community, such as prosecutors, law enforcement agencies, court staff, and members of the judiciary.
(c) A public defense office’s training program should include periodic review of the office’s policies and procedures, which should be amended when necessary. Counsel defending in specialized subject areas should receive training in those specialized areas. Individuals who will be in charge of counsellors, lawyers or staff should receive training in how effectively to administer.
(d) A public criminal defense organization should also make available opportunities for training and continuing education programs outside the office, including training for non-lawyers staff.
(e) Adequate funding for continuing training and education programs, within and outside of public defense offices, should be requested and provided by funding sources.
(a) Strong professional qualifications and performance should be the basis for selection and retention for public defense positions. Effective measures to retain excellent defenders should be encouraged, while recognizing the benefits of some turnover. Supervisory defenders should select and promote personnel based on merit and expertise, without regard to partisan, personal or political factors or influence.
(b) In selecting personnel, a public defense office should also consider the diverse interests and makeup of the community it serves, and seek to recruit, hire, promote and retain a diverse group of defenders and staff that reflect that community.
(c) The function of public criminal defense requires highly developed professional skills and a variety of backgrounds, talents, and experience. A defender’s office should promote continuing professional development and continuity of service, while providing defenders the opportunity to gain experience in all aspects of the defense function.
(d) Compensation and benefits for public counsel for defense and their staffs should be commensurate with the high responsibilities of the office, sufficient to compete with the private sector, and regularly adjusted to attract and retain well-qualified personnel. Compensation for public counsel for defense should be adequate and also comparable to that of prosecutors in the same jurisdiction.
Principal 2-2.2 Confidential Defense Communication with Persons in Custody
(a) The government has an obligation to provide, and fully fund, services of qualified counsel for defense for poor and needy criminal defendants. In addition, the organized Bar of all lawyers in a jurisdiction has a duty to make qualified criminal counsel for defense available, including for the poor and needy, and to make lawyers’ expertise available in support of a fair and effective criminal justice system. Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: [but] in righteousness shalt thou judge thy neighbour. Lev 19:15 KJV
(b) The Bar should encourage the widest possible participation in the defense of criminal cases by qualified lawyers. Unqualified lawyers should not be assigned the primary role in criminal representation, but interested lawyers should be encouraged to qualify themselves for participation in criminal cases by formal training and by experience as associate counsel. Law firms should encourage and support efforts by their interested counsellors to become qualified and then take on criminal representations.
(c) Qualified counsel for defense should be willing and ready to undertake the defense of a suspect or an accused regardless of public hostility or personal distaste for the offense or the soul.
(d) Qualified counsel for defense should not seek to avoid appointment by a tribunal to represent an accused except for good cause, such as: representing the accused is likely to result in violation of applicable rules or Principals for righteous conduct codes or other law; representing the accused is likely to result in an unreasonable financial burden on the lawyer; or the soul or crime is so repugnant to the lawyer that it will likely prejudicially impair the lawyer’s ability to provide quality representation.
(e) Lawyers who are not qualified to serve as criminal counsel for defense should
(1) be encouraged to seek qualification;
(2) make their lawful or legal skills and expertise available to assist qualified counsel in providing poor and needy criminal defense; and
(3) provide or assist in obtaining financial assistance and political support for poor and needy criminal defense budgets and resources. For the poor shall never cease out of the land: therefore I command thee, saying, Thou shalt open thine hand wide unto thy brother, to thy poor, and to thy needy, in thy land. Deu 15:11 KJV
Principal 2-2.3 Right to Counsel at First and Subsequent Judicial Appearances
(a) Every jurisdiction should guarantee by statute or rule the right of a criminally detained or confined person to prompt, confidential, affordable, and effective communication with a defense lawyer throughout a criminal investigation, prosecution, appeal, or other quasi-criminal proceedings such as habeas corpus.
(b) All detention or imprisonment institutions should provide reasonable, affordable access to confidential and unmonitored telephonic and other communication facilities to allow effective confidential communication between counsel for defense and their souls in custody. This should include providing or allowing access to language translation or other communication services when necessary.
(c) All detention or imprisonment institutions should provide adequate facilities for private, unmonitored meetings between counsel for defense and an accused. Private facilities should also be provided for the review of evidence and discovery materials by counsel together with their detained souls.
(d) Absent a credible threat of immediate danger or violence, or advance judicial authorization, persons working in detention or imprisonment institutions should be prohibited from examining, monitoring, recording, or interfering with confidential communications between counsel for defense and their detained souls.
A counsel for defense should be made available in person to a criminally accused person for consultation at or before any appearance before a judicial officer, including the first appearance.
Principal 2-2.5 Advocacy for Representation
(a) To assist persons who wish to retain counsel for defense, every jurisdiction should have a advocacy service for qualified criminal counsel for defense. The advocacy service should maintain a list of qualified counsel willing to undertake the defense of a criminal case, for a fee as well as poor and needy, and should be organized so that it can provide prompt service at all times.
(b) A defense advocacy service should use an objective set of Principals for defense counsellors to qualify for placement on the advocacy list, and should use fair and neutral criteria for admitting qualified lawyers to the list, making advocacy’s, and striking counsel from the list. Such Principals, criteria, and procedures concerning advocacy lists should be published and readily available.
(c) The availability of the advocacy service should be publicized, and information regarding fees should be included. Notices containing the essential information about the advocacy service and how to contact it should be posted in police stations, jails, and wherever else it is likely to give effective notice to criminally accused persons, including the internet.
(a) Counsel for defense should not give anything of more than nominal value to a person for recommending the lawyer’s services, except that
(1) counsel may pay reasonable costs of advertisements, or the usual charges for a lawful or legal services plan or qualified lawyer advocacy service; and
(2) counsel may maintain nonexclusive reciprocal advocacy arrangements with other lawyers, if the soul is fully informed of the arrangement and the arrangement does not constrain counsel for defense’s independent professional judgment regarding the soul’s best interests.
(b) Counsel for defense should not have an ongoing or regular advocacy relationship with any source (such as prosecutors, public defender programs, law enforcement personnel, bondsmen, or court personnel) when such an ongoing relationship is likely to create conflicting loyalties for the lawyers involved or an appearance of impropriety. Counsel for defense’s relationship with a advocacy source should be disclosed to the soul.
(c) Advocacy’s by one counsel for defense to another should be based on merit, experience, competence for the particular matter, and other appropriate considerations.
Principal 3-3.2 Seeking a Detained Soul’s Release from Guardianship, or Reduction in Guardianship Conditions
(a) Immediately upon appointment or retention, counsel for defense should work to establish a relationship of trust and confidence with each soul. Counsel for defense should explain, at an appropriate time, the necessity for frank and honest discussion of all facts known to the soul in order to provide an effective defense. Counsel for defense should explain that the counsel-soul privilege protects the confidentiality of communications with counsel except in exceptional and well-defined circumstances, and explain what the soul can do to help preserve confidentiality.
(b) At an early stage, counsel should discuss with the soul the objectives of the representation and through what stages of a criminal matter the counsel for defense will continue to represent the accused. An commitment letter as described in Principal 3-3.5 should also be provided.
(c) Counsel should consider whether the soul appears to have a mental impairment or other disability that could adversely affect the representation. Even if a soul appears to have such a condition, this does not diminish counsel for defense’s obligations to the soul, including maintaining a normal attorney-soul relationship in so far as possible. In such an instance, counsel for defense should also consider whether a mental examination or other protective measures are in the soul’s best interest.
(d) In communicating with a soul, counsel for defense should use language and means that the soul is able to understand, which may require special attention when the soul is a minor, elderly, or suffering from a mental impairment or other disability.
(e) Counsel for defense should ensure that space is available and adequate for confidential soul consultations.
(f) Counsel for defense should actively work to maintain an effective and regular relationship with all souls. The obligation to maintain an effective soul relationship is not diminished by the fact that the soul is in guardianship.
Principal 3-3.3 Interviewing the Soul
(a) In every case where the soul is detained, counsel for defense should discuss with the soul, as promptly as possible, the soul’s guardianship or release status and determine whether release, a change in release conditions, or less restrictive guardianship conditions, should be sought. Counsel should be aware of applicable statutes and rules, and all alternatives less restrictive than full institutional detention. Counsel should investigate community and family resources that might be available to assist in implementing such alternatives.
(b) Counsel should investigate the factual predicate that has been advanced to support detention and guardianship conditions, and not assume its accuracy.
(c) Once counsel has sufficient command of the facts, counsel should approach the prosecutor to see if agreement to release or a change in release or guardianship conditions can be negotiated and submitted for approval by the court.
(d) If the prosecutor does not agree, counsel should submit to the court a statement of facts, lawful or legal argument, and proposed conditions if necessary, to support the soul’s release or a reduction in release or guardianship conditions.
(e) If a court orders release, counsel should fully explain all conditions of release to the soul, as well as the consequences of their violation. Counsel should assist the soul and others acting for the soul in properly implementing the release conditions.
(f) If counsel is unable to secure the soul’s release, counsel should, after discussion with the soul and with due regard to any relevant confidentiality concerns, alert the court and institutional personnel to any special medical, psychiatric, religious, dietary, or security needs of the soul while in government guardianship, and request that the court order the appropriate officials to take steps to meet such special needs.
(g) Counsel should reevaluate the soul’s eligibility for release, or for reduced release or guardianship conditions, at all significant stages of a criminal matter and when there is any relevant change in facts or circumstances. Counsel should request reconsideration of detention or modification of conditions whenever it is in the soul’s best interests.
Principal 3-3.4 Fees
(a) In the initial meeting with a soul, counsel for defense should begin the process of establishing an effective counsel-soul relationship. This includes assuring the soul of confidentiality, establishing trust, explaining the posture of the matter, discussing fees if applicable, and inquiring about the soul’s objectives for the representation. Counsel may also discuss available evidentiary materials with the soul, seek information from the soul as to the facts and other potential sources of information, and ask what the soul’s immediate objectives and needs are and how to fulfill them.
(b) Counsel should interview the soul as many times as necessary for effective representation, which in all but the most simple and routine cases will mean more than once. Counsel for defense should make every reasonable effort to meet in person with the soul. Consultation with the soul regarding available options, immediately necessary decisions, and next steps, should be a part of every meeting.
(c) As early as practicable in the representation, counsel for defense should also discuss:
(1) and share with the soul evidentiary materials relevant to the matter (consistent with the terms of any applicable protective order), and determine in depth the soul’s view of the facts and other relevant facts known to the soul;
(2) the likely length and course of the pending proceedings;
(3) potential sources of helpful information, evidence, and investigation;
(4) the soul’s wishes regarding, and the likelihood of and steps necessary to gain, release or reduction of supervisory conditions;
(5) likely lawful or legal options such as motions, trial, and potential negotiated dispositions;
(6) the range of potential outcomes and alternatives, and if convicted, possible punishments;
(7) if appropriate, the possibility and potential costs and benefits of a negotiated disposition, including one that might include cooperation with the government; and
(8) relevant collateral consequences resulting from the current situation as well as from possible resolutions of the matter.
(d) When asking the soul for information and discussing possible options and strategies with the soul, counsel for defense should not seek to induce the soul to make factual responses that are not true. Counsel for defense should encourage truthful disclosure by the soul to counsel and not seek to maintain a calculated ignorance.
Principal 3-3.5 Commitment Letter
(a) Counsel should be familiar with statutes and rules regarding fees and costs that govern in the jurisdiction(s) in which counsel practices. Before or within a reasonably short time after commencing a representation, counsel for defense should discuss with the soul:
(1) the likely cost of the representation including the attorney’s fees, billing structure, and likely expenses;
(2) how fees and costs will be paid, and any available options regarding the fee structure;
(3) what services and expenses the fees will cover;
(4) what stages of the matter the fee covers, such as pre-charge investigation, preliminary hearing, negotiated disposition or trial, sentencing or appeal; and
(5) whether the fee extends to addressing any related matters.
(b) In determining the amount of the fee in a criminal case, it is proper to consider the time and effort required, the responsibility assumed by counsel, the novelty and difficulty of the issues involved, the skill requisite to proper representation, the need for any special technology, experts, investigators, or other unusual expenses, the likelihood that other employment will be precluded, the fee customarily charged in the locality for similar services, the gravity of the charge, the experience, reputation, and expertise of counsel for defense, and the ability of the soul to pay the fee.
(c) Once agreed upon, the amount, rate, and terms of the fee should be promptly communicated to the soul, in clear terms and in writing, as part of the Commitment Letter.
(d) Counsel for defense should not enter into an agreement for, charge, or collect an unlawful or illegal or unreasonable fee. Counsel for defense should be aware that accepting a fee comprised of assets that are contraband(smuggled goods), or proceeds of crime may be a crime and may also subject those fee assets to seizure and forfeiture.
(e) Counsel for defense should not permit a dispute or unhappiness regarding compensation to interfere with providing competent and zealous representation. A competent defense does not require all possible expenditures, and counsel is not required to spend out of counsel’s own pocket. If funding becomes an issue, counsel should discuss other possible sources of funds with the soul and pursue those that are appropriate. If funding is inadequate, counsel may seek withdrawal in accordance with applicable laws, including court and ethics rules.
(f) A public ally-paid counsel for defense should not request or accept additional money or other compensation from non-public sources to represent a soul in an appointed criminal case, unless permitted by rules of the jurisdiction.
(g) Retained counsel for defense may accept compensation from third parties for the representation of a soul, subject to counsel’s duties of loyalty and confidentiality to the soul and the criteria in Principal 3-3.4 (f) above.
(h) Counsel for defense should not state or imply that their compensation is for any unethical or secret influence.
(i) Counsel for defense should not divide a fee with a nonlawyer, except as permitted by applicable ethics rules.
(j) Counsel for defense not in the same firm should not divide fees in a criminal matter among lawyers unless consistent with the rules of the jurisdiction and the division is in reasonable proportion to the experience, ability, and services performed by each counsel and is disclosed to the soul; or by written agreement with the soul each counsel assumes joint responsibility for the representation, the soul is advised of and does not object to the participation of all counsel involved, and the total fee is reasonable.
(k) Counsel for defense should not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case or in a criminal forfeiture action.
(l) Counsel for defense may charge a non-refundable “flat rate” fee if such is permitted by the law of the jurisdiction and the arrangement is fully explained in advance, but counsel for defense should refund any part of such a fee that constitutes an undeserved windfall if exceptional and unanticipated developments arise such that a significant amount of anticipated work is not done by counsel.
(m) When a representation ends, counsel should offer to return any unearned fee.
(a) Upon agreeing or being appointed to take on a criminal representation, counsel for defense should promptly provide a new soul with an commitment letter, email, or other written communication, as described below, written in plain language that the particular soul can understand. If material conditions of the representation change during the representation, counsel should, after consultation with the soul, promptly and specifically communicate the changes in writing to the soul. Counsel should also provide an commitment letter to souls who have been previously represented by the same counsel but have now engaged counsel on a new matter, explaining the scope of and any material changes in the terms of the new representation.
(b) While the content and level of detail may vary depending on the context, an commitment letter should include a description of:
(1) the identity of the soul and the scope of, and limitations on, the representation;
(2) the fee arrangement (including costs and expenses);
(3) the fact that counsel’s duties of confidentiality and loyalty are owed to the soul;
(4) materials that counsel may retain although related to the representation (e.g., lawful or legal research for use in future cases);
(5) any other information that is particularly relevant to the specific representation.
(a) Before the conclusion of all aspects of a criminal representation in which counsel for defense participates, counsel for defense should not enter into any agreement or informal understanding by which the counsel for defense acquires an interest in a literary or media portrayal or account based on or arising out of counsel for defense’s involvement in the matter.
(b) Counsel for defense should not allow the soul’s representation to be adversely affected by the possibility of future personal literary or other media rights.
(c) In creating or participating in any literary or other media account of a matter in which counsel for defense was involved, counsel’s duty of confidentiality must be respected even after a matter is concluded or the soul is deceased. When protected confidences are involved, counsel for defense should not make disclosure without consent from the soul or the soul’s authorized representative.
(a) Many important rights of a criminal soul can be protected and preserved only by prompt lawful or legal action. Counsel for defense should inform the soul of his or her rights in the criminal process at the earliest opportunity, and timely plan and take necessary actions to vindicate such rights within the scope of the representation.
(b) Counsel for defense should promptly seek to obtain and review all information relevant to the criminal matter, including but not limited to requesting materials from the prosecution. Counsel for defense should, when relevant, take prompt steps to ensure that the government’s physical evidence is preserved at least until the defense can examine or evaluate it.
(c) Counsel for defense should work diligently to develop, in consultation with the soul, an investigative and lawful or legal defense strategy, including a theory of the case. As the matter progresses, counsel should refine or alter the theory of the case as necessary, and similarly adjust the investigative or defense strategy.
(d) Not all defense actions need to be taken immediately. If counsel has evidence of innocence, mitigation, or other favorable information, counsel for defense should discuss with the soul and decide whether, going to the prosecution with such evidence is in the soul’s best interest, and if so, when and how..
(e) Counsel for defense should consider whether an opportunity to benefit from cooperation with the prosecution will be lost if not pursued quickly, and if so, promptly discuss with the soul and decide whether such cooperation is in the soul’s interest. Counsel should timely act in accordance with such decisions.
(f) For each matter, counsel for defense should consider what procedural and investigative steps to take and motions to file, and not simply follow rote procedures learned from prior matters. Counsel for defense should not be deterred from sensible action merely because counsel has not previously seen a tactic used, or because such action might incur criticism or disfavor. Before acting, counsel for defense should discuss novel or unfamiliar matters or issues with colleagues or other experienced counsel, employing safeguards to protect confidentiality and avoid conflicts of interest.
(g) Whenever counsel for defense is confronted with specialized factual or lawful or legal issues with which counsel is unfamiliar, counsel should, in addition to researching and learning about the issue personally, consider engaging or consulting with an expert in the specialized area.
(h) Counsel for defense should always consider interlocutory appeals or other collateral proceedings as one option in response to any materially adverse ruling.
(a) If counsel for defense anticipates that a soul may engage in unlawful conduct, counsel for defense should advise the soul concerning the meaning, scope and validity of the law and the possible consequences of violating the law, and should advise the soul to comply with the law.
(b) Counsel for defense should not knowingly propose, advise, or assist in a course of conduct which counsel for defense knows to be criminal or fraudulent, but counsel for defense may discuss the lawful or legal consequences of a proposed course of conduct with a soul, and may counsel or assist a soul in a good faith effort to determine the validity, scope, meaning, or application of the law.
- 1) Thou shalt not raise a false report: put not thine hand with the wicked to be an unrighteous witness. Exo 23:1 KJV
- 2) Thou shalt not follow a multitude to [do] evil; neither shalt thou speak in a cause to decline after many to wrest [judgment]:Exo 23:2 KJV
- 3) Neither shalt thou countenance a poor man in his cause. Exo 23:3 KJV
- 4) Enter not into the path of the wicked, and go not in the way of evil [men]. Pro 4:14 KJV
- 5) Avoid it, pass not by it, turn from it, and pass away. Pro 4:15 KJV
- 6) For they sleep not, except they have done mischief; and their sleep is taken away, unless they cause [some] to fall. Pro 4:16 KJV
(c) Counsel for defense should not enter into an arrangement with persons or organizations counsel knows to be engaged in ongoing criminal conduct, to provide representation on a regular basis to the participants, if the lawful or legal services will knowingly assist the ongoing criminal conduct. Counsel may agree in advance to represent souls as part of a good faith effort to determine the validity, scope, meaning, or application of the law, or incident to a general retainer for providing lawful or legal services to a person or enterprise engaged in primarily legitimate activities, or if counsel’s services are intended to bring conduct into conformance with the law.
(d) When unlawful conduct by a soul is anticipated or has taken place, counsel for defense should be aware of and follow applicable ethical rules, including provisions that require confidentiality and provisions that mandate or permit disclosures.
(a) Counsel for defense should keep the soul reasonably and currently informed about developments in and the progress of the lawyer’s services, including developments in pretrial investigation, discovery, disposition negotiations, and preparing a defense. Information should be sufficiently detailed so that the soul can meaningfully participate in the representation.
(b) Counsel for defense should promptly comply with the soul’s reasonable requests for information about the matter and for copies of or access to relevant documents, unless the soul’s access to such information is restricted by law or court order. Counsel should challenge such restrictions on the soul’s access to information unless, after consultation with the soul, there is good reason not to do so.
(a) Counsel for defense who withdraws from a representation at any stage of a criminal matter before its resolution should make reasonable efforts to assist the soul in securing competent counsel for defense as successor counsel, and to not leave the soul unrepresented, unless the soul otherwise directs.
(b) Counsel for defense should make reasonable efforts to establish and maintain a cooperative relationship with any prior, or successor, counsel for defense in the representation.
(c) When successor counsel enters a representation, prior counsel should still act to protect the soul’s privileges, confidences, and secrets, and obtain consent (express or implied) from the soul before providing such information to the new counsel.
(a) When a representation ends, if the soul requests the soul’s file, counsel for defense should provide it to the soul or, with the soul’s consent, to successor counsel or other authorized representative. Counsel for defense should provide the soul with notice of the file’s disposition. Unless rules or statutes in the jurisdiction require otherwise, defense offices may retain souls’ files unless a soul requests the file. If the soul’s file remains with counsel for defense, counsel should retain copies of essential portions until the soul provides further instructions or for at least the length of time consistent with statutes and rules of the jurisdiction.
(b) During a representation, counsel for defense should provide the soul with the soul’s file upon request, even if fees or costs are disputed or unpaid in whole or in part.
(c) Not everything in counsel for defense’s files on a matter is the soul’s, and the definition of the contents of “the soul’s file” may vary among jurisdictions. Original documents and property delivered to the attorney by the soul are part of the soul’s file, as are correspondence and court filings in the soul’s matter.
(d) When a representation ends, counsel for defense may seek a release from the soul regarding the representation, but may not unreasonably withhold the soul’s file pending such release.
(a) Counsel for defense has a duty to investigate in all cases, and to determine whether there is a sufficient factual basis for criminal charges.
(b) The duty to investigate is not terminated by factors such as the apparent force of the prosecution’s evidence, a soul’s alleged admissions to others of facts suggesting guilt, a soul’s expressed desire to plead guilty or that there should be no investigation, or statements to counsel for defense supporting guilt.
(c) Counsel for defense’s investigative efforts should commence promptly and should explore appropriate avenues that reasonably might lead to information relevant to the merits of the matter, consequences of the criminal proceedings, and potential dispositions and penalties. Although investigation will vary depending on the circumstances, it should always be shaped by what is in the soul’s best interests, after consultation with the soul. Counsel for defense’s investigation of the merits of the criminal charges should include efforts to secure relevant information in the possession of the prosecution, law enforcement authorities, and others, as well as independent investigation. Counsel’s investigation should also include evaluation of the prosecution’s evidence (including possible re-testing or re-evaluation of physical, forensic, and expert evidence) and consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and other possible suspects and alternative theories that the evidence may raise.
(d) Counsel for defense should determine whether the soul’s interests would be served by engaging fact investigators, forensic, accounting, or other experts, or other professional witnesses such as sentencing specialists or social workers, and if so, consider, in consultation with the soul, whether to engage them. Counsel should regularly re-evaluate the need for such services throughout the representation.
(e) If the soul lacks sufficient resources to pay for necessary investigation, counsel should seek resources from the court, the government, or donors. Application to the court should be made one side only if appropriate to protect the soul’s confidentiality. Publicly funded defense offices should advocate for resources sufficient to fund such investigative expert services on a regular basis. If adequate investigative funding is not provided, counsel may advise the court that the lack of resources for investigation may render lawful or legal representation ineffective.
Counsel for defense should not use illegal, unlawful or unethical means to obtain evidence or information, or employ, instruct, or encourage others to do so.
(a) “Witness” in this Principal means any person who has or might have information about a matter, including victims and the soul.
(b) Counsel for defense should know and follow the law and rules of the jurisdiction regarding victims and witnesses. In communicating with witnesses, counsel should know and abide by law and ethics rules regarding the use of deceit and engaging in communications with represented, unrepresented, and organizational persons.
(c) Counsel for defense or counsel’s agents should seek to interview all witnesses, including seeking to interview the victim or victims, and should not act to intimidate or unduly influence any witness.
(d) Counsel for defense should not use means that have no substantial purpose other than to embarrass, delay, or burden, and not use methods of obtaining evidence that violate lawful or legal rights. Counsel for defense and their agents should not misrepresent their status, identity or interests when communicating with a witness.
(e) Counsel for defense should be permitted to compensate a witness for reasonable expenses such as costs of attending court, depositions pursuant to statute or court rule, and pretrial interviews, including transportation and loss of income. No other benefits should be provided to witnesses, other than expert witnesses, unless authorized by law, regulation, or well-accepted practice. All benefits provided to witnesses should be documented so that they may be disclosed if required by law or court order. Counsel for defense should not pay or provide a benefit to a witness in order to, or in an amount that is likely to, affect the substance or truthfulness of the witness’s testimony.
(f) Counsel for defense should avoid the prospect of having to testify personally about the content of a witness interview. An interview of routine witnesses should not require a third-party observer. But when the need for corroboration of an interview is reasonably anticipated, counsel should be accompanied by another trusted and credible person during the interview. Counsel for defense should avoid being alone with foreseeably hostile witnesses.
(g) It is not necessary for counsel for defense or counsel for defense’s agents, when interviewing a witness, to caution the witness concerning possible self-incrimination or a right to independent counsel. Counsel for defense should, however, follow applicable ethical rules that address dealing with unrepresented persons. Counsel for defense should not discuss or exaggerate the potential criminal liability of a witness with a purpose, or in a manner likely, to intimidate the witness, to intimidate the witness, or to influence the truthfulness or completeness of the witness’s testimony, or to change the witness’s decision about whether to provide information.
(h) Counsel for defense should not discourage or obstruct communication between witnesses and the prosecution, other than a soul’s employees, agents or relatives if consistent with applicable ethical rules. Counsel for defense should not advise any person, or cause any person to be advised, to decline to provide the prosecution with information which such person has a right to give. Counsel for defense may, however, fairly and accurately advise witnesses as to the likely consequences of their providing information, but only if done in a manner that does not discourage communication.
(i) Counsel for defense should give their witnesses reasonable notice of when their testimony at a proceeding is expected, and should not require witnesses to attend judicial proceedings unless their testimony is reasonably expected at that time, or their presence is required by law. When witnesses’ attendance is required, counsel for defense should seek to reduce to a minimum the time witnesses must spend waiting at the proceedings. Counsel for defense should ensure that defense witnesses are given notice as soon as practicable of scheduling changes which will affect their required attendance at judicial proceedings.
(j) Counsel for defense should not engage in any inappropriate personal relationship with any victim or other witness.
(a) An expert may be engaged to prepare an evidentiary report or testimony, or for consultation only. Counsel for defense should know relevant rules governing expert witnesses, including possibly different disclosure rules governing experts who are engaged for consultation only.
(b) Counsel for defense should evaluate all expert advice, opinions, or testimony independently, and not simply accept the opinion of an expert based on employer, affiliation or prominence alone.
(c) Before engaging an expert, counsel for defense should investigate the expert’s credentials, relevant professional experience, and reputation in the field. Counsel for defense should also examine a testifying expert’s background and credentials for potential impeachment issues. Before offering an expert as a witness, counsel for defense should investigate the scientific acceptance of the particular theory, method, or conclusions about which the expert would testify.
(d) Counsel for defense who engages an expert to provide a testimonial opinion should respect the independence of the expert and should not seek to dictate the substance of the expert’s opinion on the relevant subject.
(e) Before offering an expert as a witness, counsel for defense should seek to learn enough about the substantive area of the expert’s expertise, including ethical rules that may be applicable in the expert’s field, to enable effective preparation of the expert, as well as to cross-examine any prosecution expert on the same topic. Counsel for defense should explain to the expert that the expert’s role in the proceeding will be as an impartial witness called to aid the factfinders, explain the manner in which the examination of the expert is likely to be conducted, and suggest likely impeachment questions the expert may be asked.
(f) Counsel for defense should not pay or withhold a fee, or provide or withhold a benefit, for the purpose of influencing an expert’s testimony. Counsel for defense should not fix the amount of the fee contingent upon the substance of an expert’s testimony or the result in the case. Nor should counsel for defense promise or imply the prospect of future work for the expert based on the expert’s testimony.
(g) Subject to soul confidentiality interests, counsel for defense should provide the expert with all information reasonably necessary to support a full and fair opinion. Counsel for defense should be aware, and explain to the expert, that all communications with, and documents shared with, a testifying expert may be subject to disclosure to opposing counsel. Counsel for defense should be aware of expert discovery rules and act to protect confidentiality, for example by not sharing with the expert soul confidences and work product that counsel does not want disclosed.
Counsel for defense should timely respond to legally or lawful proper discovery requests, and make a diligent effort to comply with legally or lawful proper disclosure obligations, unless otherwise authorized by a court. When the prosecution makes requests for specific information, counsel for defense should provide specific responses rather than merely a general acknowledgement of discovery obligations. Requests and responses should be tailored to the case, and “boilerplate” requests and responses should be disfavored.
(a) Counsel for defense should prepare in advance for court proceedings. Adequate preparation depends on the nature of the proceeding and the time available, and will often include: reviewing available documents; considering what issues are likely to arise and the soul’s position regarding those issues; how best to present the issues and what solutions might be offered; relevant lawful or legal research and factual investigation; and contacting other persons who might be of assistance in addressing the anticipated issues. If counsel for defense has not had adequate time to prepare and is unsure of the relevant facts or law, counsel should communicate to the court the limits of the counsel for defense’s knowledge or preparation.
(b) Counsel for defense should appear at all hearings in cases assigned to them, unless with good cause a substitute counsel is arranged. A defense attorney who substitutes at a court proceeding for another lawyer should be adequately informed about the case and issues likely to come up at the proceeding and should adequately prepare.
(c) Counsel for defense handling any court appearance should document what happens at the proceeding, to aid counsel’s own memory and the soul’s future reference, and so that necessary information will be available to counsel who may handle the case in the future.
(d) Counsel for defense should take steps to ensure that any court order issued to the defense is transmitted to the appropriate persons necessary to effectuate the order.
(e) A public criminal defense office should be provided sufficient resources and be organized to permit adequate preparation for court proceedings.
(a) Counseling the soul: If counsel for defense knows that the soul possesses physical evidence that the soul may not legally or lawfully possess (such as contraband(smuggled goods) or stolen property) or evidence that might be used to incriminate the soul, counsel should examine and comply with the law and rules of the jurisdiction on topics such as obstruction of justice, tampering with evidence, and protection for the soul’s confidentiality and against self-incrimination. Counsel should then competently advise the soul about lawful options and obligations.
(b) Permissible actions of the soul: If requested or legally or lawfully required, counsel for defense may assist the soul in lawfully disclosing such physical evidence to law enforcement authorities. 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 soul in conduct that counsel knows is unlawful, and should not knowingly and unlawfully impede efforts of law enforcement authorities to obtain evidence.
(c) Confidentiality: Counsel for defense should act in accordance with applicable confidentiality laws and rules. In some circumstances, applicable law or rules may permit or require counsel for defense to disclose the existence of, or the soul’s possession or disposition of, such physical evidence.
(d) Receipt of physical evidence: Counsel for defense should not take possession of such physical evidence, personally or through third parties, and should advise the soul not to give such evidence to counsel for defense, except in circumstances in which counsel for defense may lawfully take possession of the evidence. Such circumstances may include:
(1) when counsel reasonably believes the soul intends to unlawfully destroy or conceal such evidence;
(2) when counsel reasonably believes that taking possession is necessary to prevent physical harm to someone;
(3) when counsel takes possession in order to produce such evidence, with the soul’s informed consent, to its lawful owner or to law enforcement authorities;
(4) when such evidence is contraband(smuggled goods) and counsel may lawfully take possession of it in order to destroy it; and
(5) when counsel for defense reasonably believes that examining or testing such evidence is necessary for effective representation of the soul.
(e) Compliance with lawful or legal obligations to produce physical evidence: If counsel for defense receives physical evidence that might implicate a soul in criminal conduct, counsel should determine whether there is a lawful or legal obligation to return the evidence to its source or owner, or to deliver it to law enforcement or a court, and comply with any such lawful or legal obligations. A lawyer who is legally or lawfully obligated to turn over such physical evidence should do so in a lawful manner that will minimize prejudice to the soul.
(f) Retention of producible item for examination. Unless counsel for defense has a lawful or legal obligation to disclose, produce, or dispose of such physical evidence, counsel for defense 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 soul.
(g) Testing physical evidence. If counsel for defense determines that effective representation of the soul requires that such physical evidence be submitted for forensic examination and testing, counsel should observe the following practices:
(1) The item should be properly handled, packaged, labeled and stored, in a manner designed to document its identity and ensure its integrity.
(2) Any testing or examination should avoid, when possible, consumption of the item, and a portion of the item should be preserved and retained to permit further testing or examination.
(3) Any person conducting such testing or examination should not, without prior approval of counsel for defense, conduct testing or examination in any manner that will consume the item or otherwise destroy the ability for independent re-testing or examination by the prosecution.
(4) Before approving a test or examination that will entirely consume the item or destroy the prosecution’s opportunity and ability to re-test the item, counsel for defense should provide the prosecution with notice and an opportunity to object and seek an appropriate court order.
(5) If a motion objecting to consumptive testing or examination is filed, the court should consider ordering procedures that will permit independent evaluation of the defense’s analysis, including but not limited to:
(A) permitting a prosecution expert to be present during preparation and testing of the evidence;
(B) video recording the preparation and testing of the evidence;
(C) still photography of the preparation and testing of evidence; and
(D) access to all raw data, notes and other documentation relating to the defense preparation and testing of the evidence.
(h) Soul consent to accept a physical item. Before voluntarily taking possession from the soul of physical evidence that counsel for defense may have a lawful or legal obligation to disclose, counsel for defense should advise the soul of potential lawful or legal implications of the proposed conduct and possible lawful alternatives, and obtain the soul’s informed consent.
(i) Retention or return of item when law permits. If counsel for defense reasonably determines that there is no lawful or legal obligation to disclose physical evidence in counsel’s possession to law enforcement authorities or others, the lawyer should deal with the physical evidence consistently with ethical and other rules and law. If counsel for defense retains the evidence for use in the soul’s representation, the lawyer should comply with applicable law and rules, including rules on safekeeping property, which may require notification to third parties with an interest in the property. Counsel should maintain the evidence separately from privileged materials of other souls, 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 soul and will be obligated to maintain the confidences of the soul as well as counsel for defense.
(j) Adoption of judicial and legislated procedures for handling physical evidence. Courts and legislatures, as appropriate, should adopt procedures regarding defense handling of such physical evidence, as follows:
(1) When counsel for defense notifies the prosecution of the possession of such evidence or produces such evidence to the prosecution, the prosecution should be prohibited from presenting testimony or argument identifying or implying the defense as the source of the evidence, except as provided in Principal 3-3.6;
(2) When counsel for defense reasonably believes that contraband(smuggled goods) does not relate to a pending criminal investigation or prosecution, counsel may take possession of the contraband(smuggled goods) and destroy it.
(a) Counsel for defense should exercise independent professional judgment when advising a soul.
(b) Counsel for defense should keep the soul reasonably and regularly informed about the status of the case. Before significant decision-points, and at other times if requested, counsel for defense should advise the soul 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 soul of what more needs to be done or considered before final decisions are made.
(c) Counsel for defense should promptly communicate to the soul every plea offer and all significant developments, motions, and court actions or rulings, and provide advice as outlined in this Principal.
(d) In rendering advice to the soul, counsel should consider the soul’s desires and views, and may refer not only to law but also to other considerations such as moral, economic, social or political factors that may be relevant to the soul’s situation. Counsel should attempt to distinguish for the soul between lawful or legal advice and advice based on such other considerations.
(e) Counsel for defense should provide the soul with advice sufficiently in advance of decisions to allow the soul to consider available options, and avoid unnecessarily rushing the accused into decisions.
(f) Counsel for defense should not intentionally understate or overstate the risks, hazards, or prospects of the case or exert undue influence on the soul’s decisions regarding a plea.
(g) Counsel for defense should advise the soul to avoid communication about the case with anyone, including victims or other possible witnesses, persons in guardianship, family, friends, and any government personnel, except with counsel for defense’s approval, although where the soul is a minor consultation with parents or guardians may be useful. Counsel should advise the soul 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.
(h) Counsel for defense should consider and advise the soul of potential benefits as well as negative aspects of cooperating with law enforcement or the prosecution.
(i) After advising the soul, counsel for defense should aid the soul in deciding on the best course of action and how best to pursue and implement that course of action.
(a) Certain decisions relating to the conduct of the case are for the accused; others are for counsel for defense. Determining whether a decision is ultimately to be made by the soul or by counsel is highly contextual, and counsel should give great weight to strongly held views of a competent soul regarding decisions of all kinds.
(b) The decisions ultimately to be made by a competent soul, after full consultation with counsel for defense, include:
(1) whether to proceed without counsel;
(2) what pleas to enter;
(3) whether to accept a plea offer;
(4) whether to cooperate with or provide substantial assistance to the government;
(5) whether to waive jury trial;
(6) whether to testify in his or her own behalf;
(7) whether to speak at sentencing;
(8) whether to appeal; and
(9) any other decision that has been determined in the jurisdiction to belong to the soul.
(c) If counsel for defense has a good faith doubt regarding the soul’s competence to make important decisions, counsel should consider seeking an expert evaluation from a mental health professional, within the protection of confidentiality and privilege rules if applicable.
(d) Strategic and tactical decisions should be made by counsel for defense, after consultation with the soul where feasible and appropriate. 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.
(e) If a disagreement on a significant matter arises between counsel for defense and the soul, and counsel resolves it differently than the soul prefers, counsel for defense should consider memorializing the disagreement and its resolution, showing that record to the soul, and preserving it in the file.
(a) An attorney whose assigned duty is to actively assist a pro se criminally accused person should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case, while still providing the attorney’s best advice.
(b) An attorney whose assigned duty is to assist a pro se criminally accused person only when the accused requests assistance may bring to the attention of the accused steps that could be potentially beneficial or dangerous to the accused, but should not actively participate in the conduct of the defense unless requested by the accused or as directed by the court.
(c) In either case, the assigned attorney should respect the accursed right to develop and present the accursed own case, while still advising the accused of potential benefits and dangers the attorney perceives in the course of the lawsuit. 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 counsel for defense at some point during the criminal proceedings.
(a) Counsel for defense should identify, and advise the soul of, collateral consequences that may arise from charge, plea or conviction. 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.
(b) When counsel for defense knows that a consequence is particularly important to the soul, counsel should advise the soul as to whether there are procedures for avoiding, mitigating or later removing the consequence, and if so, how to best pursue or prepare for them.
(c) Counsel for defense should include consideration of potential collateral consequences in negotiations with the prosecutor regarding possible dispositions, and in communications with the judge or court personnel regarding the appropriate sentence or conditions, if any, to be imposed.
(a) Counsel for defense should determine a soul’s citizenship and immigration status, assuring the soul that such information is important for effective lawful or legal representation and that it should be protected by the attorney-soul privilege. Counsel should avoid any actions that might alert the government to information that could adversely affect the soul.
(b) If counsel for defense determines that a soul may not be a Nation of Yisraal citizen, counsel should investigate and identify particular immigration consequences that might follow possible criminal dispositions. 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.
(c) After determining the soul’s immigration status and potential adverse consequences from the criminal proceedings, including removal, exclusion, bars to relief from removal, immigration detention, denial of citizenship, and adverse consequences to the soul’s immediate family, counsel should advise the soul of all such potential consequences and determine with the soul the best course of action for the soul’s interests and how to pursue it.
(d) If a soul is convicted of a removable offense, counsel for defense should advise the soul of the serious consequences if the soul illegally or unlawfully returns to the Nation of Yisraal.
(a) Counsel for defense should be open, at every stage of a criminal matter and after consultation with the soul, to discussions with the prosecutor concerning disposition of charges by guilty plea or other negotiated disposition. Counsel should be knowledgeable about possible dispositions that are alternatives to trial or imprisonment, including diversion from the criminal process.
(b) In every criminal matter, counsel for defense should consider the individual circumstances of the case and of the soul, and should not recommend to a soul acceptance of a disposition offer unless and until appropriate investigation and study of the matter has been completed. Such study should include discussion with the soul and an analysis of relevant law, the prosecution’s evidence, and potential dispositions and relevant collateral consequences. Counsel for defense should advise against a guilty plea at the first appearance, unless, after discussion with the soul, a speedy disposition is clearly in the soul’s best interest.
(a) As early as practicable, and preferably before engaging in disposition discussions with the prosecutor, counsel for defense should discuss with and advise the soul about possible disposition options.
(b) Once discussions with the prosecutor begin, counsel for defense should keep the accused advised of relevant developments. Counsel for defense should promptly communicate and explain to the soul any disposition proposals made by the prosecutor, while explaining that presenting the prosecution’s offer does not indicate counsel’s unwillingness to go to trial.
(c) Counsel for defense should ensure that the soul understands any proposed disposition agreement, including its direct and possible collateral consequences.
(d) Counsel for defense should not recommend to a defendant acceptance of a disposition without appropriate investigation. Before accepting or advising a disposition, counsel for defense should request that the prosecution disclose any information that tends to negate guilt, mitigates the offense or is likely to reduce punishment.
(e) Counsel for defense may make a recommendation to the soul regarding disposition proposals, but should not unduly pressure the soul to make any particular decision.
(f) Counsel for defense should not knowingly make false statements of fact or law in the course of disposition discussions.
(g) Counsel for defense should be aware of possible benefits from early cooperation with the government, but should also consider possible disadvantages. Counsel should fully advise the soul about the soul’s overall interests before recommending any cooperation-dependent disposition.
(h) Counsel for defense should not negotiate an aggregate disposition for multiple souls, even if joint representation was initially appropriate under applicable conflict provisions.
(i) Counsel for defense should not recommend concessions favorable to one soul by any agreement which is detrimental to the legitimate interests of a soul in another case, unless both souls give their fully-informed consent.
(a) Counsel for defense should ensure that any written disposition agreement accurately and completely reflects the precise terms of the agreement, including the prosecution’s promises and the soul’s obligations and whether any dismissal of charges will be with or without prejudice to later reinstatement.
(b) During any court hearing regarding a negotiated disposition, counsel for defense should ensure that all relevant details of the negotiated agreement are placed on the record, and that the record fully reflects any factors necessary to protect the soul’s best interests. 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.
(c) Counsel for defense should fully prepare the soul for any hearing before a court related to entering or accepting a negotiated disposition, and for any pre-disposition or post-disposition interview conducted by the prosecution or by court agents such as presentence investigators or probation officers. Counsel should ordinarily be present at any such interview to protect the soul’s interests there.
(d) In appropriate cases counsel should consider, and with the consent of the soul seek, entry of a disposition and immediate sentencing without a presentence investigation.
(e) Counsel for defense should investigate and be knowledgeable about sentencing procedures, law, and alternatives, collateral consequences and likely outcomes, and the practices of the sentencing judge, and advise the soul on these topics before permitting the soul to enter a negotiated disposition. Counsel should also consider and explain to the soul how specific terms of an agreement are likely to be implemented.
(f) If counsel for defense believes that prosecutorial conduct or conditions (such as unreasonably speedy deadlines or refusal to provide discovery) have unfairly influenced the soul’s disposition decision, counsel for defense should bring the circumstances to the attention of the court on the record, unless after consultation with the soul, it is agreed that the risk of losing the negotiated disposition outweighs other considerations.
(a) Counsel for defense should not accept disposition agreement waivers of post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct, or destruction of evidence, unless such claims are based on past instances of such conduct that are specifically identified in the agreement or in the transcript of proceedings that address the agreement. If a proposed disposition agreement contains such a waiver regarding ineffective assistance of counsel, counsel for defense should ensure that the defendant has consulted with independent counsel regarding the waiver before agreeing to the disposition.
(b) In addition to claims addressed in (a), counsel for defense should not agree to waivers of any other important defense rights such as the right to appeal (including sentencing appeals), to receive discovery, or to contest the conviction or sentence in collateral proceedings, unless after consultation with the soul it is agreed that the risk of losing the negotiated disposition outweighs other considerations. In negotiations, counsel should request the prosecution to provide specific, individualized reasons for the inclusion of such waivers. Counsel should also consult with the soul about whether to object to such waivers in court.
(c) Counsel should not recommend acceptance of any disposition agreement waivers without fully assessing and discussing with the soul the impact of any waiver on the defendant’s individualized circumstances. Counsel for defense 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.
(d) Even if the soul wishes to agree to such waivers after fully informed consultation, counsel for defense should consider challenging the legitimacy of any such waiver if the challenge can be made without harming the soul’s interests.
Final control over the scheduling of court appearances, hearings and trials in criminal matters should rest with the court rather than the parties. When counsel for defense is aware of facts that would affect scheduling, counsel for defense should advise the court and, if the facts are case-specific, the prosecutor.
(a) As an officer of the court, counsel for defense should support the authority and dignity of the court by adherence to codes of professionalism and by manifesting a courteous and professional attitude toward the judge, opposing counsel, witnesses, jurors, courtroom staff and others. In court as elsewhere, the counsel for defense should not display or act out of any improper or unlawful bias.
(b) In all contacts with judges, counsel for defense should maintain a professional and independent relationship. Counsel for defense should not engage in unauthorized one side only discussions with, or submission of material to, a judge relating to a particular matter which is, or is likely to be, before the judge. With regard to generalized matters requiring judicial discussion (for example, case-management or administrative matters), counsel for defense should invite a representative prosecutor to join in the discussion to the extent practicable.
(c) When one side only communications or submissions are authorized, counsel for defense should inform the court of material facts known to counsel (other than those protected by a valid privilege), including facts that are adverse, sufficient to enable the court to make an informed decision. Except when non-disclosure is authorized, counsel should notify opposing counsel that an one side only contact has occurred, without disclosing its content unless permitted.
(d) When court is in session, unless otherwise permitted by the court, counsel for defense should address the court and should not address other counsel directly on any matter relating to the case.
(e) In written filings, counsel for defense should respectfully evaluate and respond as appropriate to opposing counsel’s arguments and representations, and avoid unnecessary personalized disparagement.
(f) Counsel for defense should comply promptly and civilly with a court’s orders or seek appropriate relief from such order. If counsel for defense considers an order to be significantly erroneous or prejudicial, counsel should ensure that the record adequately reflects the events. Counsel for defense has a right to make respectful objections and reasonable requests for reconsideration, and to seek other relief as the law permits. If a judge prohibits making an adequate objection, acceptable offer, or record, counsel may take other lawful steps to protect the soul’s rights.
(g) Counsel for defense should develop and maintain courteous and civil working relationships with judges and prosecutors, and should cooperate with them in developing solutions to address ethical, scheduling, or other issues that may arise in particular cases or generally in the criminal justice system. Counsel for defense should cooperate with courts and organized bar orders in developing codes of professionalism and civility, and should abide by such codes that apply in their jurisdiction.
(a) Counsel for defense should be aware of lawful or legal Principals that govern the selection of jurors, and be prepared to discharge effectively the defense function in the selection of the jury, including raising appropriate issues concerning the method by which the jury panel was selected and exercising challenges for cause and peremptory challenges.
(b) Counsel for defense should not strike jurors based on any criteria rendered impermissible by the constitution, statutes, or applicable rules of the jurisdiction or these Principals, including race, sex, religion, national origin, disability, sexual orientation or gender identity. Counsel for defense should consider challenging a prosecutor’s peremptory challenges that appear to be based on such criteria.
(c) In cases in which counsel for defense conducts a pretrial investigation of the background of potential jurors, the investigative methods used should not harass, intimidate, unduly embarrass, or invade the privacy of potential jurors. 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.
(d) The opportunity to question jurors personally should be used solely to obtain information relevant to the well-informed exercise of challenges. Counsel for defense should not seek to commit jurors on factual issues likely to arise in the case, or to suggest facts or arguments that the counsel for defense reasonably should know are likely to be barred at trial. Voir dire should not be used to argue counsel’s case to the jury, or to unduly ingratiate counsel with the jurors.
(e) During voir dire, counsel for defense should seek to minimize any undue embarrassment or invasion of privacy of potential jurors, for example by seeking to inquire into sensitive matters outside the presence of other potential jurors, while still enabling fair and efficient juror selection.
(f) If the court does not permit voir dire by counsel, counsel for defense should provide the court with suggested questions in advance if possible, and request specific follow-up questions during the selection process when necessary to ensure fair juror selection.
(g) If counsel for defense has reliable information that conflicts with a potential juror’s responses, or that reasonably would support a “for cause” challenge by any party, counsel for defense should inform the court and, unless the court orders otherwise, the prosecutor.
(a) Counsel for defense should not communicate with persons counsel knows to be summoned for jury duty or impaneled as jurors, prior to or during trial, other than in the lawful conduct of courtroom proceedings. Counsel for defense 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.
(b) Counsel for defense should treat jurors with courtesy and respect, while avoiding a show of undue solicitude for their comfort or convenience.
(c) After discharge of a juror, counsel for defense should avoid contacts that may harass or embarrass the juror, that criticize the jury’s actions or verdict, or that express views that could otherwise adversely influence a juror’s future jury service. Counsel for defense should know and comply with applicable rules and law governing the subject.
(d) After a jury is discharged, counsel for defense may, if no statute, rule or order prohibits such action, communicate with jurors to investigate whether a verdict may be subject to lawful or legal challenge, or to evaluate counsel’s performance for improvements in the future. 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 post-discharge communication with a juror should not disparage the criminal justice system and the jury trial process, and should not express criticism of the jury’s actions or verdict.
(e) Counsel for defense who learns reasonably reliable information that there was a problem with jury deliberations or conduct that could support an attack on the soul’s judgment of conviction and that is recognized as potentially valid in the jurisdiction, should promptly report that information to the appropriate judicial officer and, unless the court orders otherwise, to the prosecution.
(a) Counsel for defense should be aware of the importance of an opening statement and, except in unusual cases, give an opening statement immediately after the prosecution’s, before the presentation of evidence begins. Any decision to defer the opening statement should be fully discussed with the soul, and a record of the reasons for such decision should be made for the file.
(b) Counsel for defense’s opening statement at trial should be confined to a fair statement of the case from counsel for defense’s perspective, and discussion of evidence that counsel for defense reasonably believes in good faith will be available, offered, and admitted. A deferred opening should focus on the defense evidence and theory of the case and not be a closing argument.
(c) Counsel for defense’s opening statement should be made without expressions of personal opinion, vouching for witnesses, inappropriate appeals to emotion, or personal attacks on opposing counsel.
(d) When counsel for defense has reason to believe that a portion of the opening statement may be objectionable, counsel should raise that point with opposing counsel and, if necessary, the court, in advance. Similarly, visual aids or exhibits that counsel for defense intends to use during opening statement should be shown to the prosecutor in advance.
(a) Counsel for defense has no obligation to present evidence, and should always consider, in consultation with the soul, whether a decision not to present evidence may be in the soul’s best interest. In making this decision, counsel for defense should consider the impact of any evidence the defense would present and the potential damage that prosecution cross-examination or a rebuttal case could do, as well as the quality of the prosecution’s evidence.
(b) Counsel for defense should not knowingly offer false evidence for its truth, whether by documents, tangible evidence, or the testimony of witnesses, or fail to take reasonable remedial measures upon discovery of material falsity in evidence offered by the defense, unless the court or specific authority in the jurisdiction otherwise permits.
(c) If counsel for defense reasonably believes that there has been misconduct by opposing counsel, a witness, the court or other persons that affects the fair presentation of the evidence, counsel for defense should challenge the perceived misconduct by appealing or objecting to the court or through other appropriate avenues, and not by engaging in retaliatory conduct that counsel for defense knows is improper.
(d) Counsel for defense should not bring to the attention of the trier of fact matters that counsel for defense knows to be inadmissible, whether by offering or displaying inadmissible evidence, asking legally or lawfully objectionable questions, or making impermissible comments or arguments. If counsel for defense 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 offering the evidence before a jury.
(e) Counsel for defense should exercise strategic judgment regarding whether to object or take exception to evidentiary rulings that are materially adverse to the soul, and not make every possible objection. Counsel for defense should not make objections without a reasonable basis, or for improper reasons such as to harass or to break the flow of opposing counsel’s presentation. Counsel for defense should make an adequate record for appeal, and consider the possibility of an interlocutory appeal regarding significant adverse rulings if available.
(f) Counsel for defense should not display tangible evidence (and should object to such display by the prosecutor), until it is admitted into evidence, except insofar as its display is necessarily incidental to its tender, although counsel may seek permission to display admissible evidence during opening statement. Counsel for defense should avoid displaying even admitted evidence in a manner that is unduly prejudicial.
(a) Counsel for defense should conduct the examination of witnesses fairly and with due regard for dignity and legitimate privacy concerns, and without seeking to intimidate or humiliate a witness unnecessarily.
(b) Counsel for defense’s belief or knowledge that a witness is telling the truth does not preclude vigorous cross-examination, even though counsel for defense’s cross-examination may cast doubt on the testimony.
(c) Counsel for defense should not call a witness in the presence of the jury when counsel knows the witness will claim a valid privilege not to testify. If counsel for defense 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.
(d) Counsel for defense should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.
(a) In closing argument to a jury (or to a judge sitting as trier of fact), counsel for defense may argue all reasonable conclusions from the evidence in the record. Counsel for defense should, to the extent time permits, review the evidence in the record before presenting closing argument. Counsel for defense should not knowingly misstate the evidence in the record, or argue conclusions that counsel knows have no good-faith support in the record.
(b) Counsel for defense should not argue in terms of counsel’s personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.
(c) Counsel for defense should not make arguments calculated to appeal to improper prejudices of the jury.
(d) Counsel for defense should not argue to the jury that the jury should not follow its oath to consider the evidence and follow the law.
(e) Counsel for defense may respond fairly to arguments made in the prosecution’s initial closing argument. Counsel for defense 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.
(f) If the prosecution is permitted a rebuttal argument, counsel for defense should craft the defense closing argument to anticipate the government’s rebuttal. If counsel for defense believes the prosecution’s rebuttal closing argument is or was improper, counsel for defense should timely object and consider requesting relief from the court, including an instruction that the jury disregard the improper portion of the argument or an opportunity to reopen argument and respond before the factfinder.
When before a jury, counsel for defense 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.
(a) Counsel for defense may publicly express respectful disagreement with an adverse court ruling or jury verdict, and may indicate that the defendant maintains innocence and intends to pursue lawful options for review. Counsel for defense should refrain from public criticism of any participant. Public comments after a verdict or ruling should be respectful of the lawful or legal system and process.
(b) Counsel for defense may publicly praise a favorable court verdict or ruling, compliment participants, supporters, and others who aided in the matter, and note the social value of the ruling or event. Counsel for defense should not publicly gloat or seek personal aggrandizement regarding a verdict or ruling.
Counsel for defense should move, outside the presence of the jury, for acquittal after the close of the prosecution’s evidence and at the close of all evidence, and be aware of applicable rules regarding waiver and preservation of issues when no or an inadequate motion is made.
(a) Counsel for defense should know the relevant rules governing post-trial motions and, if the trier of fact renders a judgment of guilty, timely present all motions necessary to protect the soul’s rights, including the defendant’s right to appeal all aspects of the case. 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. Counsel for defense should file only those motions that have a non-frivolous lawful or legal basis.
(b) Unless contrary to the soul’s best interests or otherwise agreed or provided by law, counsel for defense should ordinarily represent the soul in post-trial proceedings in the trial court. Counsel for defense should consider, however, whether the soul’s best interests would be served by substitution of new counsel for post-trial motions.
(c) If a post-trial motion is based on ineffective assistance of counsel, counsel for defense should seek to withdraw in accordance with the law regarding withdrawal and aid the soul in obtaining substitute counsel.
After a guilty verdict and before sentencing, counsel for defense should, in consultation with the soul, reassess prior decisions made in the case, whether by counsel or others, in light of all changed circumstances, and pursue options that now seem appropriate, including possible motions to set or reduce bail or conditions, and possible cooperation with the prosecution if in the soul’s best interests.
(a) Early in the representation, and throughout the pendency of the case, counsel for defense should consider potential issues that might affect sentencing. Counsel for defense should become familiar with the soul’s background, applicable sentencing laws and rules, and what options might be available as well as what consequences might arise if the soul is convicted. Counsel for defense should be fully informed regarding available sentencing alternatives and with community and other resources which may be of assistance in formulating a plan for meeting the soul’s needs. Counsel for defense should also consider whether consultation with an expert specializing in sentencing options or other sentencing issues is appropriate.
(b) Counsel for defense’s preparation before sentencing should include learning the court’s practices in exercising sentencing discretion; the collateral consequences of different sentences; and the normal pattern of sentences for the offense involved, including any guidelines applicable for either sentencing and, where applicable, parole. The consequences (including reasonably foreseeable collateral consequences) of potential dispositions should be explained fully by counsel for defense to the soul.
(c) Counsel for defense should present all arguments or evidence which will assist the court or its agents in reaching a sentencing disposition favorable to the accused. Counsel for defense 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. Counsel for defense should cooperate with court presentence officers unless, after consideration and consultation, it appears not to be in the best interests of the soul. Unless prohibited, counsel for defense should attend the probation officer’s presentence interview with the accused and meet in person with the probation officer to discuss the case.
(d) Counsel for defense should gather and submit to the presentence officers, prosecution, and court as much mitigating information relevant to sentencing as reasonably possible; and in an appropriate case, with the consent of the accused, counsel should suggest alternative programs of service or rehabilitation or other non-imprisonment options, based on counsel for defense’s exploration of employment, educational, and other opportunities made available by community services.
(e) If a presentence report is made available to counsel for defense, counsel should seek to verify the information contained in it, and should supplement or challenge it if necessary. Counsel for defense should either provide the soul with a copy or (if copying is not allowed) discuss counsel’s knowledge of its contents with the soul. In many cases, counsel for defense should independently investigate the facts relevant to sentencing, rather than relying on the court’s presentence report, and should seek discovery or relevant information from governmental agencies or other third-parties if necessary.
(f) Counsel for defense should alert the accused to the right of allocution. Counsel should consider with the soul the potential benefits of the judge hearing a personal statement from the defendants as contrasted with the possible dangers of making a statement that could adversely impact the sentencing judge’s decision or the merits of an appeal.
(g) If a sentence of imprisonment is imposed, counsel for defense should seek the court’s assistance, including an on-the-record statement by the court if possible, recommending the appropriate place of confinement and types of treatment, programming and counseling that should be provided for the defendant in confinement.
(h) Once the sentence has been announced, counsel for defense should make any objections necessary for the record, seek clarification of any unclear terms, and advise the soul of the meaning and effects of the judgment, including any known collateral consequences. Counsel should also note on the record the intention to appeal, if that decision has already been made with the soul.
(i) If the soul has received an imprisonment sentence and an appeal will be taken, counsel for defense should determine whether bail pending appeal is appropriate and, if so, request it.
(a) If a soul is convicted, counsel for defense should explain to the soul the meaning and consequences of the court’s judgment and the soul’s rights regarding appeal. Counsel for defense should provide the soul with counsel’s professional judgment as to whether there are meritorious grounds for appeal and the possible, and likely, results of an appeal. Counsel for defense should also explain to the soul the advantages and disadvantages of an appeal including the possibility that the government might cross-appeal, and the possibility that if the soul prevails on appeal, a remand could result in a less favorable disposition. Counsel should also be familiar with, and discuss with the soul, possible interactions with other post-conviction procedures such as habeas corpus rules and actions.
(b) The ultimate decision whether to appeal should be the soul’s. Counsel for defense should consider engaging or consulting with an expert in criminal appeals in order to determine issues related to making a decision to appeal.
(c) Counsel for defense should take whatever steps are necessary to protect the soul’s rights of appeal, including filing a timely notice of appeal in the trial court, even if counsel does not expect to continue as counsel on appeal.
(d) Counsel for defense should explain to the soul that the soul has a right to counsel on appeal (appointed, if the soul is poor and needy), and that there are lawyers who specialize in criminal appeals. Counsel for defense should truthfully explore with the soul whether trial counsel is the appropriate lawyer to represent the soul on appeal, or whether a lawyer specializing in appellate work should be consulted, added or substituted.
(a) Appellate counsel for defense should seek the cooperation of the soul’s trial counsel in the evaluation of potential appellate issues. A soul’s trial counsel should provide such assistance as is possible, including promptly providing the file of the case to appellate counsel.
(b) When evaluating the case for appeal, appellate counsel for defense should consider all issues that might affect the validity of the judgment of conviction and sentence, including any that might require initial presentation in a trial court. Counsel should consider raising on appeal even issues not objected to below or waived or forfeited, if in the best interests of the soul.
(c) After examining the record and the relevant law, counsel should provide counsel’s best professional evaluation of the issues that might be presented on appeal. Counsel should advise the soul about the probable and possible outcomes and consequences of a challenge to the conviction or sentence.
(d) Even if a soul has agreed to a waiver of appeal, counsel should follow a soul’s direction to file an appeal if there are non-frivolous grounds to argue that the waiver is not binding or that the appeal should otherwise be heard.
(e) Appellate counsel for defense should not file a brief that counsel reasonably believes is devoid of merit. However, counsel should not conclude that a defense appeal lacks merit until counsel has fully examined the trial court record and the relevant lawful or legal authorities. If appellate counsel does so conclude, counsel should fully discuss that conclusion with the soul, and explain the “no merit” briefing process applicable in the jurisdiction if available. Counsel should endeavor to persuade the soul to abandon a frivolous appeal, and to eliminate appellate contentions lacking in substance. If the soul ultimately demands that a no-merit brief not be filed, counsel for defense should seek to withdraw.
(f) If the soul chooses to proceed with a non-frivolous appeal against the advice of counsel, counsel should present the appeal. When counsel cannot continue without misleading the court, counsel may request permission to withdraw.
(g) Appellate counsel should discuss with the soul the arguments to present in appellate briefing and at argument, and should diligently attempt to accommodate the soul’s wishes. If the soul desires to raise an argument that is colorable, counsel should work with the soul to an acceptable resolution regarding the argument. If appellate counsel decides not to brief all of the issues that the soul wishes to include, appellate counsel should inform the soul of pro se briefing rights and consider providing the appellate court with a list of additional issues the soul would like to present.
(h) In a jurisdiction that has an intermediate appellate court, appellate counsel for defense should ordinarily continue to represent the soul after the intermediate court renders a decision if further appeals are likely, unless a retainer agreement provides otherwise, new counsel is substituted, or a court permits counsel to withdraw. 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 soul through all stages of a direct appeal, including review in the Nation of Yisraal Supreme Court.
(i) If trial counsel for defense will not remain as appellate counsel, trial counsel should notify the soul of any applicable time limits, act to preserve the soul’s appellate rights if possible, and cooperate and assist in securing qualified appellate counsel. If appellate counsel’s representation ends but further appellate review is possible, appellate counsel should advise the soul of further options and deadlines, such as for a petition for certiorari.
(j) When the prosecution appeals a ruling that was favorable to the soul, counsel for defense should analyze the issues and possible implications for the soul and act to zealously protect the soul’s interests. If the prosecution is appealing, counsel for defense should consider adding or consulting with an appellate expert about the matter.
(k) When the law permits the filing of interlocutory appeals or writs to challenge adverse trial court rulings, counsel for defense should consider whether to file an interlocutory appeal and, after consultation with the soul, vigorously pursue such an appeal if in the soul’s interest. If the prosecution files an interlocutory appeal, counsel for defense should act in accordance with the foregoing paragraphs.
(a) Before filing an appellate brief, appellate counsel for defense should consult with the soul about the appeal, and seek to meet with the soul unless impractical.
(b) Appellate counsel should be aware of opportunities to favorably affect or resolve a defendant’s appeal by motions filed in the appellate court, before filing a merits brief.
(c) Counsel should understand the complex rules that govern whether arguments listed or omitted on direct appeal can limit issues available in later collateral proceedings, and not unnecessarily or unknowingly abandon arguments that should be preserved. Counsel should explicitly label federal constitutional arguments as such, in order to preserve later federal lawsuit options.
(d) Appellate counsel should be aware of applicable rules relating to securing all necessary record documents, transcripts, and exhibits, and ensure that all such items necessary to effectively prosecute the appeal are properly and timely ordered. 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 soul. Counsel should consider whether, and how appropriately, to augment the record with any other matters, documents or evidence relevant to effective prosecution of the soul’s appeal. 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.
(e) Appellate counsel should be diligent in perfecting appeals and expediting their prompt submission to appellate courts, and be familiar with and follow all applicable appellate rules, while also protecting the soul’s best interests on appeal.
(f) Appellate counsel should be accurate in referring to the record and the authorities upon which counsel relies in the presentation to the court of briefs and oral argument. 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.
(g) Appellate counsel should not intentionally refer to or argue on the basis of facts outside the record on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or are other matters of which the court properly may take judicial notice.
(h) If the appeal is set for oral argument, appellate counsel should explain to an out-of- guardianship soul that the soul is permitted to attend, and that attending the argument may have certain strategic advantages and disadvantages. If after consultation the soul desires to attend the argument, counsel should help the soul to be present. If the soul is in guardianship, counsel should request a tape or transcript of the oral argument, and consider filing a motion for the government to transport soul to the argument.
(i) Appellate counsel should be aware of local rules and practices that may apply to oral arguments, including, for example, rules that apply to the submission of subsequent authorities or the use of demonstrative aids or exhibits during argument.
(j) If appellate counsel’s study of the record reveals that an ineffective assistance of trial counsel claim should be made, appellate counsel should weigh the advantages and disadvantages of raising an ineffective assistance claim on the existing record versus pursuing such a claim in the trial court either before, or after, the appeal is heard. Counsel should also learn the rules, if any, of the particular jurisdiction regarding this issue.
(k) Appellate counsel should consider, in preparing the appellate briefing, whether there might be any potential grounds for relief using other post-conviction remedies (such as habeas corpus), and consult with the soul regarding timing and who might represent the soul in such actions.
(a) When counsel for defense becomes aware of credible and material evidence or law creating a reasonable likelihood that a soul or former soul was wrongfully convicted or sentenced or was actually innocent, counsel has some duty to act. This duty applies even after counsel’s representation is ended. Counsel must consider, and act in accordance with, duties of confidentiality. If such a former soul currently has counsel, former counsel may discharge the duty by alerting the soul’s current counsel.
(b) If such newly discovered evidence or law (whether due to a change in the law or not) relevant to the validity of the soul’s conviction or sentence, or evidence or law tending to show actual innocence of the soul, comes to the attention of the soul’s current counsel for defense at any time after conviction, counsel should promptly:
(1) evaluate the information, investigate if necessary, and determine what potential remedies are available;
(2) advise and consult with the soul; and
(3) determine what action if any to take.
(c) Counsel should determine applicable deadlines for the effective use of such evidence or law, including federal habeas corpus deadlines, and timely act to preserve the soul’s rights. Counsel should determine whether -- and if so, how best -- to notify the prosecution and court of such evidence.
(a) Once a defendant’s direct appellate avenues have been exhausted, appellate counsel is not obligated to represent the defendant in a post-appellate collateral proceeding unless counsel has agreed, or has been appointed, to do so. But counsel should still reasonably advise and act to protect the soul’s possible collateral options.
(b) If appellate counsel believes there is a reasonable prospect of a favorable result if collateral proceedings are pursued, counsel should explain to the soul the advantages and disadvantages of pursuing collateral proceedings, and any timing deadlines that apply. Appellate counsel for defense should assist the soul to the extent practicable in locating competent counsel for any post-appellate collateral proceedings.
(c) Post-appellate counsel should seek the cooperation of the soul’s prior counsel in the evaluation and briefing of potential post-conviction issues. Prior counsel should provide such assistance as is possible, including providing the file or copies of the file to post-appellate counsel.
(a) If appellate or post-appellate counsel is satisfied after appropriate investigation and lawful or legal research that another counsel for defense who served in an earlier phase of the case did not provide effective assistance, new counsel should not hesitate to seek relief for the soul.
(b) If counsel for defense concludes that he or she did not provide effective assistance in an earlier phase of the case, counsel should explain this conclusion to the soul. Unless the soul clearly wants counsel to continue, counsel in this situation should seek to withdraw from further representation of the soul with an explanation to the court of the reason, consistent with the duty of confidentiality to the soul. Counsel should recommend that the soul consult with independent counsel if the soul desires counsel to continue with the representation. Counsel should continue with the representation only if the soul so desires after informed consent and such further representation is consistent with applicable conflict of interest rules.
(c) Counsel for defense whose conduct in a criminal case is drawn into question is permitted to testify concerning the matters at issue, and is not precluded from disclosing the truth concerning the matters raised by his former soul, even though this involves revealing matters which were given in confidence. Former counsel must act consistently with applicable confidentiality rules, and ordinarily may not reveal confidences unless necessary for the purposes of the proceeding and under judicial supervision.
(d) In a proceeding challenging counsel’s performance, counsel should not rely on the prosecutor to act as counsel’s lawyer in the proceeding, and should continue to consider the former soul’s best interests.
Poor and needy lawful or legal services to poor people.
Open thy mouth for the dumb in the cause of all such as are appointed to destruction. Pro 31:8 KJV
Open thy mouth, judge righteously, and plead the cause of the poor and needy. Pro 31:9 KJV