Legal Defender Best Practices

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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