Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant\u27s Tactical Choices

A law student approached me not long ago to discuss a problem he had encountered while helping to prepare a criminal case for retrial. The defendant\u27s first trial ended with a hung jury. The defendant, Steven Brown, now faced a second trial on the same misdemeanor charge of assaulting a police officer. Although the defendant still wanted to go to trial, Brown told defense counsel that he did not want his elderly father to have to testify again. From defense counsel\u27s standpoint, the father\u27s testimony was critical because he was the only witness corroborating the defendant\u27s version of the event. Moreover, in talking to members of the jury after the hung verdict, counsel learned that the jurors viewed the defendant\u27s testimony as largely incredible, but found Brown\u27s father to be very believable. Lawyers, courts, and commentators are sharply divided as to whom should have the final say when lawyer and criminal defendant disagree regarding the decision to call a particular witness. In the absence of a strong professional \u27consensus regarding the proper allocation of decision-making power in the attorney-client relationship, criminal practitioners are given considerable latitude to decide for themselves how to resolve decision-making disputes with their clients. This article seeks to highlight the difficulty facing defense counsel by examining three variations of the strategic impasse that counsel faced in the Brown case

Relations between Lawyer and Client in Damages: Model, Typical, or Dysfunctional

This essay begins, therefore, by briefly examining the question of what constitutes good lawyering. The essay acknowledges the difficulty of defining precisely what is good lawyering. In fact, scholar, judges, and lawyers often disagree markedly when they characterize lawyer behavior using the term. Not surprising, then, even though academic commentators routinely trumpet the importance of establishing a meaningful attorney-client relationship as an important aspect of good lawyering, not all in the legal profession embrace that view

Why in-House Live Client Clinics Won\u27t Work in Romania: Confessions of a Clinician Educator

Romanians eat our Big Macs, wolf down pizza slices at Pizza Hut, and guzzle Coca-Cola. They wear baseball caps, Nike clothing, and tennis shoes. They listen to American rap and pop music, see American movies with Romanian subtitles, and watch all of our old television shows. Romanians of all ages, but especially the young, hunger and thirst for all things Western, particularly from the United States. Doesn\u27t it follow, then, that Romanian law schools ought to have - and, indeed, Romanian law professors would want - that symbol of an innovative, modern American law school curriculum: a live client clinical program? The answer is a resounding no. Most Romanian educators are not familiar with clinical legal education and are too busy to be seriously interested in any curricular reform. Those professors who are knowledgeable about clinical education generally believe that in-house live client clinics are completely unworkable in the Romanian context. From my perspective, these Romanians are absolutely correct. Given the existing structure of Romanian education, the nature of the Romanian system, and the limited resources available to Romanian law schools, pedagogically sound in-house live client clinics are not feasible. Nevertheless, Romanian legal educators - and those of other countries of the region - are being pressured and cajoled by some American consultants and outside funding entities to add in-house live client clinics to their curriculum. Based upon my experiences as a CEELI1 Legal Specialist in Romania, I believe the Romanians should resist the pressure to add live client clinical programs and instead focus on developing other badly needed courses that will provide their students the skills and values they need to be good lawyers. The development of such courses will not, however, be easy.This essay begins by examining why in-house live client clinic programs are, indeed, not viable in Romania or in most of the other economically struggling countries of the region. The essay next highlights some of the serious hurdles facing a country such as Romania seeking to achieve meaningful legal education reform. Finally, it concludes by reminding American educators promoting American-style clinical legal education in other countries of the limits of their role and by urging potential donors to provide funding that promotes, rather than frustrates, meaningful curricular reform

The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach

In the first issue of the Clinical Law Review, Peter Hoffman challenged clinical legal educators to produce clinical scholarship that is “practical in its orientation and design” and written so as to enhance the ability of lawyers to represent their clients and to help law students prepare for law practice. This article takes up Hoffman\u27s challenge in the context of examining the skill of negotiating or plea bargaining from the perspective of the criminal defense lawyer. Before discussing the methods, approach or techniques that lawyers can use to enhance their ability to bargain effectively, it is critical to understand what it is about the practices of criminal defense lawyers and the criminal justice system that produces poor plea bargaining. This article, then, seeks to bridge the proverbial gap between theory and practice by providing law students, lawyers and new clinicians a practical but analytical guide to the skill of plea bargaining. Section I is intended to ensure that readers have the necessary background -- in other words, are sufficiently grounded in experience -- so that they can fully appreciate the importance of proper preparation and the significant pressures lawyers face to shortcut that preparation. Section II briefly examines the importance of client consultation and raises the issue of the need to obtain the client\u27s consent before plea bargaining. Section III then examines additional factors and considerations that are likely to affect the implementation of counsel\u27s strategic approach. Finally, Section IV concludes by urging defense counsel to engage in a reflective critique of each negotiating session in order to improve counsel\u27s ability to select and to implement a successful negotiation strategy

Allocation of Decisionmaking between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking

In Commonwealth v. Woodward, the highly publicized murder trial of an au pair accused of killing an infant in her care, the defense team faced a strategic decision commonly encountered at trial: whether to request or to object to lesser included jury instructions. Put simply, the Woodward defense team had to decide whether to ask for an instruction that would permit the jury to return a manslaughter verdict, or to object to such an instruction, leaving the jury only the choice either to acquit the defendant or to convict her of second degree murder as charged in the indictment. Undoubtedly concerned that the jury might return a manslaughter verdict, either as a compromise or because it comported with the evidence, but apparently confident that the jury would acquit rather than return a murder verdict, the defense team chose to object to the submission of the manslaughter instruction. This strategic decision-based on the defense team\u27s prediction of what the jury was likely to do when faced with an all-or-nothing choice-was personally and publicly approved by Ms. Woodward. Unfortunately for Ms. Woodward, the jury returned a guilty verdict. Fortunately for her, however, the trial judge invoked the court\u27s statutory authority and reduced the verdict to the lesser included charge of manslaughter

Convicting the Innocent: Aberration or Systemic Problem?

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel\u27s help in facilitating a guilty plea. With luck, money, and location primarily determining whether a defendant has meaningful access to justice in this country, the promise of equal justice remains illusory.Providing defendants access to competent counsel with the time and resources to meaningfully test the prosecution\u27s case is a badly needed step that would enhance the fairness and reliability of our criminal justice system. It is, however, just one step in fixing a broken system. For even the presence of a capable defense lawyer does not necessarily ensure that the innocent will, in fact, go free. Contrary to popular wisdom, our system of justice does not overprotect criminal defendants, thereby minimizing the conviction of the innocent. Rather, our state criminal justice systems, as they currently operate, inadequately protect those wrongfully accused of crimes

A Discourse on the ABA\u27s Criminal Justice Standards: Prosecution and Defense Functions: The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance?

Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice Standards for Prosecution and Defense Functions? This article explores three scenarios that present variations of the physical evidence conundrum and explores the extent to which existing authority provides clear guidance when lawyers find themselves wrestling with a physical evidence quandary. The article concludes that Standard 4-4.6’s more nuanced return-to-the-source rule strikes a better balance between defense counsel’s duty as an officer of the court and her duties as a zealous advocate than the mandatory turnover rule championed by most courts and by section 119 of Restatement (Third) of the Laws Governing Lawyers. Finally, the article urges those revising Standard 4-4.6 to retain its basic approach, but to address some of the weaknesses of the Standard

The New Criminal Discovery Code in Oklahoma: A Two-Way Street in the Wrong Direction

This article first examines criminal discovery in Oklahoma prior to the Allen decision. Next, section II of the article explores Allen and the court’s justifications for creating a reciprocal discovery system. The article reviews the Allen procedures and similar pre-trial discovery provisions contained in the American Bar Association’s Standards for Criminal Justice and questions whether Allen’s new discovery system will achieve the desired results. Section II also focuses on the constitutionality of the defendant’s disclosure obligations and the adverse effects of mandating such disclosures on the adversary system. Finally, section III of the article proposes an alternative discovery code based largely on the ABA Standards and argues that the Oklahoma legislature should adopt such a code because it appropriately balances the defendant’s constitutional rights with the state’s interest in a fair, efficient system of pre-trial discovery