Difference between revisions of "Legal Defender Best Practices"

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!Substantive Right
!Substantive Right

Latest revision as of 10:29, 4 April 2013

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Substantive Right Laws to be in place Lawyer's Practices Structural Implementation
Right to Non Self-Incrimination
  • Right to remain silent
  • Attorney-Client privilege
  • Accused is a non-compellable witness
  • Court recognition of privileged relationships (spouse, doctor, lawyer)
  • Counsel to abide by ethical norms and act in accordance with rules of the court
  • Explanation of attorney-client privilege to client
  • Knowledge of rules of evidence to protect client in trial (including application for severance if multiple accused)
  • Entering a plea of not guilty in all but the most extraordinary circumstances where a sound tactial reason exists for not doing so
  • Counsel should make sure the client if fully aware of: maximum term of imprisonment/fine, possibility of forfeiture of assets, consequences of conviction, possible sentencing and parole consequences, possible and likely place of confinement
  • The decision to enter a plea of guilty rests solely with the client, and counsel should not attempt to unduly influence that decision
  • Accused is non-compellable witness
  • Evidentiary rules of non-admissibility
  • Court recognition of privileged relationships (spouse, doctor, lawyer)
  • Judicial discretion to protect the accused (if prejudicial value outweighs the probative value)
Security of the Person
  • Right not to be tortured
  • Accession to ICCPR article 7 (torture clause)
  • No arbitrary arrest or detention (ICCPR, 9-1)
  • Informed, at time of arrest of reasons for arrest (ICCPR, 9-2)
  • Bail Provisions
  • Illegality of improperly obtained evidence and coerced confessions
  • Laws regulating legal arrest
  • Rules for legal search and seizures
  • Presence of Counsel at earliest stage possible
  • Counsel should explain to Accused what they have been charged with, and the case that the prosecution has to prove
  • Counsel should be prepared to present to the appropriate judicial officer a statement of the factual circumstance and the legal criteria supporting release and, where appropriate, to make a proposal concerning conditions of release
  • Where client is incarcerated and unable to obtain pretrial release, counsel should alert the court to any special medical or psychiatric and security needs of the client and request that the court direct the appropriate officials to take steps to meet such special needs
  • Counsel should be familiar with the legal criteria for determining pretrial release, different types of pretrial release, and procedures to be followed
  • Counsel should ordinarily obtain the consent of the client before entering into any plea negotiation and keep client fully informed of any continued plea discussion
  • Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation
  • Formal complaint mechanism
  • Evidentiary rules of admissibility
  • Transparent and ethical behaviour of police force
  • Separation between prosecution and police as independent institutions (cooperation is expected and acceptable)
  • Requirement for suspects in serious cases be videotaped or electronically recorded when questioned
  • Judiciary to consider international law obligations when rendering decisions
Right to assigned legal counsel
  • Right to legal representation
  • Legal aid provisions (Gideon v. Wainwright)
  • ICCPR 3(d): Accused should have the minimum guarantee to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it
  • Professional Responsibility laws to ensure that defence lawyers give ethical and competent services as well as act transparently
  • Before agreeing to act as counsel or accepting appointment by a court, counsel has an obligation to make sure that counsel has available sufficient time, resources, knowledge and experience to offer quality representation to a defendant in a particular matter. If it later appears that counsel is unable to offer quality representation in the case, counsel should move to withdraw.
  • Counsel to abide by ethical norms and act in accordance with rules of the court
  • Counsel should develop and continually reassess a theory of the case
  • Creation and encouragement of monitoring institutions including NGOs and civil society to ensure adherence to the right of access to legal counsel in practice
  • State provides adequate funding for legal aid offices including sufficient material, technical support to effectively operate, retention of forensic and investigatory expertise
  • Adequate training of legal defenders, either through institutional training or through continuing legal education
  • Ensure that defense lawyers are able to serve their clients without inappropriate pressure or intimidation from governmental authorities
  • Ensure that the personal security of lawyers are not compromised by searches, investigations, interrogations or prosecution due to their actions representing a client in a particular case
  • Adequate number of lawyers trained nationally, and regionally
Presumption of Innocence
  • Right to be presumed innocent
  • Higher burdens of proof for the Prosecution
  • Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons
  • Entering a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so
  • Counsel should challenge the constitutional validity of reverse onus provisions if possible
  • Existence of ongoing tentative plea negotiations with the prosecution should not prevent counsel from taking steps necessary to preserve a defense
  • Counsel should attempt to anticipate weaknesses in the prosecution’s proof and consider researching and preparing corresponding motions for judgment of acquittal (no evidence motion)
  • Where appropriate, at the close of the prosecution’s case and out of the presence of the jury, counsel should move for a judgment of acquittal on each count charged. Counsel should request, when necessary, that the court immediately rule on the motion, in order that counsel may make an informed decision about whether to present a defense case
  • In deciding on defense strategy, counsel should consider (with accused) whether the client’s interests are best served by not putting on a defense case, and instead relying on the prosecution’s failure to meet its constitutional burden of proving each element beyond a reasonable doubt
  • Judicial discretion to protect the accused (if prejudicial value outweighs the probative value)
  • Reasonable reverse onus provisions if they exist
  • Judiciary to consider international law obligations when rendering decisions
  • High charge approcal standards
Equality of Arms
  • All persons shall be equal before the courts and tribunals (ICCPR Art 14(1))
  • No retroactive application of criminal law or punishment
  • Everyone shall have the right to recognition as a person before the law (ICCPR 16)
  • All persons are equal before the law and are entitled without any discrimination to the equal protection of the law (ICCPR 26)
  • The Law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (ICCPR 26)
  • •Accession to CEDAW and the CRC
  • Counsel to provide zealous and quality representation to clients
  • Counsel has duty to conduct an independent investigation regardless of the Accused’s admissions or statements to the lawyer of facts constituting guilt.
  • Counsel should have free and full access to the client whenever necessary
  • Counsel should ensure that there is adequate time for trial preparation, and applying for a continuation if not.
  • Counsel should examine, or have examined prosecution witnesses and obtain attendance and examination of witnesses on Accused’s behalf under the same conditions as witnesses against him
  • Counsel should arrange for the free assistance of an interpreter if he cannot understand or speak the language used in court
  • Counsel should seek full disclosure of relevant materials from the prosecution
  • Counsel should be familiar with the law governing the prosecution’s power to require a defendant to provide non-testimonial evidence (such as handwriting exemplars and physical specimens)
  • Counsel should conduct an in-depth interview of the client as soon as possible and appropriate after appointment in order to seek information regarding the incident or improper police investigative practices or prosecutorial conduct affecting client’s rights
  • Counsel should use the following sources of investigation: charging documents, the accused, potential witnesses, police and prosecution (disclosure rules), physical evidence, the scene of the incident, physical evidence, expert assistance
  • In making discovery requests, counsel should take into account such requests that may trigger reciprocal discovery obligations
  • Counsel should seek discovery of the following: potential exculpatory information, names and addresses of all prosecution witnesses and statements made by them, all oral and written statements made by accused and the circumstances in which they were made, prior criminal record of the accused and any evidence of other misconduct that government may intend to use against the A, relevant physical evidence, expert opinions and evidence, statements of co-defendants
  • Counsel should explore with client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial and in doing so should fully explain the rights that would be waived by a decision to enter a plea and not to proceed to trial
  • Where appropriate, counsel should advise the client as to suitable courtroom dress and demeanor. If the client is incarcerated, counsel should be alert to the possible prejudicial effects of the client appearing before the jury in jail or other inappropriate clothing
  • In preparing for cross-examination, counsel should be familiar with the applicable law and procedures concerning cross-examinations and impeachment of witnesses.
  • Before beginning cross examination, counsel should ascertain whether the prosecutor has provided copies of all prior statements of the witnesses as required by applicable law. If counsel does not receive prior statements of prosecution witnesses until they have completed direct examination, counsel should request adequate time to review these documents before commencing cross-examination.
  • Accused should be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him (ICCPR, 3-a)
  • Accused should have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own chosing
  • No one shall be hedl guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed
  • Rules of evidence in place to ensure quality and accuracy; fair application of rules
  • Judiciary to consider international law obligations when rendering decisions
  • Provision of language interpreters when necessary
  • Judicial consideration of cultural, gender + religious sensitivities and custom
  • Adequate training of judiciary and prosecution
  • All members of justice system (police, lawyers, judiciary) abide by code of ethics
  • Ensure that the personal security of lawyers are not compromised by searches, investigations, interrogations or prosecution due to their actions representing a client in a particular case
  • Development of jury trial system
  • Negotiation process in place between prosecution and defence
  • Rules of examination and cross-examination are enforced in the courtroom
Right to a Fair Trial
  • Right to a timely trial
  • Higher burdens of proof for the Prosecution
  • Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law
  • Counsel should consider filing pre-trial motions when there exists a good-faith reason to believe that the applicable law may entitle the defendant to relief which the court has discretion to grant: pre-trial custody, constitutionality of provisions or statutes, potential defects of charging process, joinder and severance of accused, discovery obligations, illegally obtained evidence, involuntary statements or confessions, unreliable evidence, suppression of evidence, right to a speedy trial, right to a continuance, trial or courtroom procedure.
  • Decision to proceed to trial with or without a jury rests solely with the client. Counsel should discuss the relevant strategic considerations of this decision with the client
  • Counsel should be fully informed as the rules of evidence, and the law relating to all stages of the trial process, and should be familiar with legal and evidentiary issues that can reasonably be anticipated to arise in the trial
  • Throughout the trial, counsel should endeavour to establish a proper record for appellate review. As part of this effort, counsel should request, whenever necessary, that trial proceedings be recorded
  • If convicted, Counsel should inform client of all
  • Transparent system including: independent judiciary, media, and academia; separation of powers
  • Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law
  • Robust and vibrant judicial review system/human rights commission/formal state inquiry system
  • Judiciary to consider international law obligations when rendering decisions
  • Adequate training of judiciary and prosecution
  • Individuals are aware of their legal rights