Chapter 2
Specific Standards For Representation
In Criminal And Juvenile Delinquency Cases



STANDARD 2.1
Prerequisites For Representation

Counsel should be proficient in applicable substantive and procedural law and should have appropriate experience, skill and training for the type of representation required.

Cases and Statutes
Some states have recognized these duties as guidelines to serve as a starting point in the development of clearer standards for a determination of effective assistance of counsel. Strickland v. Washington, 80 L. Ed. 674, 694 (1984); DeCoster I, supra at 1203. The standards represent only minimum duties owed by counsel to each client, not aspirational guidelines to which the attorney should strive. United States v. DeCoster (DeCoster II), 624 F2d 196, 276 (1976).

ORS 419C.285 provides that, while only the youth and the state are parties to the adjudication stage of a delinquency proceeding, parents or guardians, the State Office for Services to Children and Families (SOSCF) and the Oregon Youth Authority (OYA) (formerly Children's Services Division [CSD]) if the youth is temporarily committed to the agency, a Court Appointed Special Advocate if one is appointed, and a psychological parent who has intervened in the case under ORS 109.119 (1), are all parties to the dispositional stage of a delinquency proceeding. Parties have the right to notice of the proceeding, the right to appear with counsel and to have counsel appointed if otherwise provided by law. The right to call witnesses and participate in the hearing, as well as the right to appeal. ORS 419C.285 (2). Counsel is constitutionally and statutorily required for parents or guardians facing loss of custody or significant interference with the parent-child relationship. State ex rel Juv. Dept. v. Grannis; ORS 419B.205. Further, the juvenile court has authority over parents and guardians of youth within the court's jurisdiction for delinquent acts, and may order them to participate in services for the child or themselves. ORS 419C.573, ORS 419C.575. Parents or guardians subject to such orders and potential contempt penalties for failure to comply, are entitled to court appointed counsel if indigent. ORS 419C.575.

Related Standards and Guidelines

NLADA Guideline 1.2 - Education, Training, and Experience of Defense Counsel

(a) To provide quality representation, counsel must be familiar with the substantive criminal law and law of criminal procedure and its application in the particular jurisdiction. Counsel has a continuing obligation to stay abreast of changes and developments in the law. Where appropriate, counsel should also be informed of the practices of the specific judge before whom a case is pending.

(b) Prior to handling a criminal matter, counsel should have sufficient experience or training to provide quality representation.

NLADA Guideline 1.3 - General Duties of Defense Counsel

(a) 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.

Washington Defender Association Standards for Public Defense Services

Standard Fourteen - Qualifications of Attorneys

2. Trial attorneys' qualifications according to severity or type of case:

e. Juvenile Cases - Class A. Each attorney representing a juvenile accused of a Class A felony shall meet the following requirements:

(i) Minimum requirements set forth in Section 1 [re: qualifications to practice law in Washington] , and

(ii) Either:

a. has served one year as a prosecutor; or

b. has served one year as a public defender; or

c. has been trial counsel alone of record in five juvenile Class B and C felony trials; and

(iii) Each attorney shall be accompanied at his or her first juvenile trial by a supervisor

f. Juvenile Cases - Classes B and C. Each attorney representing a juvenile accused of a Class B or C felony shall meet the following requirements:

(i) Minimum requirements set forth in Section 1; and

(ii) Either:

a. has served one year as a prosecutor; or

b. has served on year as a public defender; or

c. has been trial counsel alone in five misdemeanor cases brought to a final resolution; and

(iii) Each attorney shall be accompanied at his or her first juvenile trial by a supervisor.

QUALIFICATION STANDARDS FOR COURT-APPOINTED COUNSEL TO REPRESENT INDIGENT PERSONS AT STATE EXPENSE, Oregon Judicial Department (1990).

'For juvenile delinquency misdemeanor cases and status offense cases - -3.1 A (1.) Has reviewed and is familiar with the ABA Standards for Criminal Justice (2d ed.), Chapters 4, 5, 10 through 15, and 20 through 22; the Code of Professional Responsibility; the Criminal and Evidence Codes of Oregon, as set forth in ORS Chapters 40, 131-169, 471, and 475; the Uniform Trial Court Rules; and Oregon State Bar, Criminal Law (1986); and (2.) Satisfies one of the following: a.) has been certified under the Oregon Supreme Court Rules on Law Student Appearances to represent clients on behalf of a public defender office, a district attorney office, or a private attorney office in criminal cases; has undertaken such representation for at least six months; and can present a letter from the student's immediate supervisor certifying the student's knowledge of applicable criminal procedure and sentencing alternatives; or, b.) Has observed five complete trials of criminal cases that were tried and submitted to a jury; or c.) Has served as counsel or co-counsel in at least two criminal cases that have been tried and submitted to a jury, or, d.) Has served as co-counsel in at least five criminal cases. Such service shall have included attendance at all court appearances and all client interviews in each case; or, e.) Has served as a judicial clerk for a court that regularly hears criminal cases; or, (3.) In lieu of the above qualifications, possesses significant equivalent experiences under Standard 3.1.2.b. For juvenile delinquency minor felony case and for abuse and neglect and dependency cases - 3.1.3 B 1.) Meets the qualifications in Section A; * and 2.) Has continued to meet the qualifications in Section A for at least nine months; and 3.) Has served as counsel or as co-counsel and has handled a significant portion of the trial in two criminal cases that have been submitted to a jury; and 4.) In at least one felony trial submitted to a jury, has associated on a pro bono or paid basis as co-counsel with an attorney who has previously tried felony cases and is otherwise qualified to try felony cases under these standards; and 5.) On request, can present an additional showing of expertise and competence in the area of criminal trial practice by submitting at least three letters of reference from other criminal trial lawyers or judges the attorney has appeared before on criminal cases. The letters must explain why the attorney has special experience and competence to handle felony cases involving potential incarceration of up to five years . . .

For juvenile delinquency major felony cases, for waiver cases based on major felonies, and for termination of parental rights cases - 3.1.3 C. 1.) Meets the qualifications specified in section B; and 2.) Has continued to meet the qualifications of Section B for nine months and has had nine months of lesser felony trial experience in a public defender or a district attorney office or in private practice; and 3.) On request, can present evidence of additional expertise and competence in the area of criminal trial practice by submitting at least five letters of reference from other criminal trial lawyers or judges that the attorney has appeared before on criminal cases. The letters must explain why the attorney has special experience and competence to handle felony cases involving potential incarceration of 20 years; or 4.) In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

For juvenile delinquency murder cases -
3.1.3.D. Murder Cases

1. Lead Counsel. An attorney is qualified for appointment as lead counsel in murder cases, not including capital murder if he or she:

a. Meets the qualifications in Section C; and

b. Has been trying major felony cases for the past three years; and

c. Has demonstrated to persons with knowledge of his or her practice a high level of learning, scholarship, training, experience, and ability to provide competent and vigorous representation to defendants charged with a crime for which the most serious penalties can be imposed; including handling cases involving codefendants, a significant number of witnesses, and cases involving suppression issues, psychiatric issues and scientific evidence, and

d. Has acted as lead counsel or co-counsel in a significant number of major felonies tried to a jury, which should include at least one homicide case that was tried to a jury and went to a final verdict; and

e. On request, can demonstrate the above by:

1) A written statement by the attorney explaining why the attorney believes that he or she has the qualifications required to handle a murder case; and

2) Certification from those with knowledge of the attorney's practice indicating that they believe that the attorney should be allowed to defend murder cases and explaining why the attorney has the qualities required. Certification must include at least five letters from at least two of the following three groups:

a) Judges before whom the attorney has appeared;

b) Defense attorneys who are recognized and respected by the local bar as experienced criminal trial lawyers and who have knowledge of the attorney's practice; and

c) District attorneys or deputies against who or with whom the attorney has tried cases; or

f. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

2. Co-Counsel. Co-Counsel in murder cases must meet the qualification is subparagraphs 1.a, b, c, and e of this section or must posses significant equivalent experience under Standard 3.1.2.b.

* The Qualification Standards do not specify how much of an attorney's practice must involve criminal or juvenile cases in order to meet the qualifications for a particular level of practice. Attorneys should be engaged in that type of practice at least half-time for a period specified.

Commentary:

A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, p. 4

'Society also needs well-trained and knowledgeable counsel to ensure that expensive institutional resources are reserved for those youth who truly need them, and that young people receive the services they need to avoid future trouble, as well as to provide equal justice in adversarial proceedings.'
Ibid., p. 12

'Defender programs that appear to be of high quality have a number of characteristics in common:

-Supportive structural features of the program that make effective representation possible, including limitations on caseloads, the ability to enter the case early on, and the flexibility to represent the client in related collateral matters (such as special education);

-Comprehensive initial and ongoing training, and available resource materials;

-Adequate non-lawyer support and resources;

-Hands-on supervision of attorneys;

-A work environment that values and nurtures juvenile court practice.'


STANDARD 2.2
General Duties And Responsibilities Of Counsel; Avoiding Conflicts Of Interest

In adult criminal and juvenile delinquency matters, counsel or counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated.

Related Standards and Guidelines

Oregon Code of Professional Responsibility
DR 4-101 Preservation of Confidences and Secrets of a Client
DR 5-105 Conflicts of Interest: Former and Current Clients

NLADA Guideline 1.3 - General Duties of Defense Counsel

(b) Counsel must be alert to all potential and actual conflicts of interest that would impair counsel's ability to represent a client. Where appropriate, counsel may be obliged to seek an advisory opinion on any potential conflicts.

State Bar of Michigan, 'Standards for Assigned Counsel,' (1995)

3. Declining Representation - Conflict from Joint Representation. A lawyer or lawyers associated in practice shall not represent two or more defendants who have been jointly charged or whose cases have been consolidated unless the following conditions are met:

(a) The attorney proposing to represent two or more defendants states on the record before trial, that joint representation will in all probability not cause a conflict of interest and the reasons for that conclusion;

(b) The defendants state, on the record, after the court's inquiry and the attorney's statement, that it is their desire to proceed with the same attorney; and

(c) The court finds, on the record, that a joint representation will in all probability not cause a conflict of interest, and states the reason for the finding. If an unanticipated conflict occurs before or during trial, an attorney who is representing two or more defendants shall immediately inform the court.

4. Disclosure of other Conflicts. When counsel identifies an actual or potential conflict of interest arising from circumstances other than the joint representation of co-defendants, counsel shall advise both the client and the court that such a conflict exists. Counsel shall explain the basis of the conflict to the extent possible without divulging privileged communications or jeopardizing the legal right or physical safety of any person. Thereafter, counsel shall withdraw from the case unless the court has elicited from the client, on the record, a knowing and voluntary waiver of the right to proceed with conflict-free counsel.

5. Preservation of Attorney-Client Privilege. Counsel shall preserve the attorney-client privilege and not disclose, without the client's permission, statements made in confidence.

6. Acceptance of Fees. Counsel shall not seek or accept fees from an indigent client or from any other source on the client's behalf other than fees authorized by the appointing authority.

American Bar Association Juvenile Justice Standards: Counsel For Private Parties

3.2 Adversity of interests.

(a) Adversity of interests defined. For purposes of these standards, adversity of interests exists when a lawyer or lawyers associated in practice:

(i) Formally represent more than one client in a proceeding and have a duty to contend in behalf of one client that which their duty to another requires them to oppose.

(ii) Formally represent one client but are required by some third person or institution, including their employer, to accommodate their representation of that client to factors unrelated to the client's legitimate interests.

(b) Resolution of adversity. At the earliest feasible opportunity, counsel should disclose to the client any interest in or connection with the case or any other matter that might be relevant to the client's selection of a lawyer. Counsel should at the same time seek to determine whether adversity of interests potentially exists and, if so, should immediately seek to withdraw from representation of the client who will be least prejudiced by such withdrawal.


STANDARD 2.3
Role Of Counsel

Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.

Cases and Statutes
Counsel is constitutionally and statutorily required for youth in delinquency cases. In re Gault, 387 US 1 (1967.)

ORS 419C.200 et seq. Counsel must be appointed for youth whenever requested in cases where the youth would be entitled to court-appointed counsel if the youth were an adult charged with the same offense. ORS 419C.200 (1). The parent or guardian of the youth's estate may be required to pay for costs of court-appointed counsel if they do not meet the standards for indigency applied in adult criminal cases. ORS 419C.203; ORS 135.050. Payment of court-appointed counsel is governed by the same statutes governing such payments in adult criminal cases. ORS 419C.206; ORS 419C.209; ORS 135.050 - .055; ORS 151.430 - .480; and ORS 151.460.

Related Standards and Guidelines

Oregon Code of Professional Responsibility
DR 5-108(A), (B) Avoiding Influence by Others than the Client
DR 7-101 Representing a Client Zealously

Massachusetts Committee for Public Counsel Services (1991)

1.3 General Duties of Defense Counsel

(a) Counsel's primary and most fundamental responsibility is to promote and protect the best interests of the client. This includes honoring the attorney/client privilege, respecting the client at all times, and keeping the client informed of the progress of the case....

(b) Client should make every effort to arrange for prompt and timely consultation with the client in an appropriate private setting....

(c) Counsel has an obligation to make available sufficient time, resources, knowledge and experience to afford competent representation of a client in a particular matter before agreeing to act as counsel or accepting appointment.

(d) Counsel has an obligation to keep and maintain a thorough, organized, and current file on each client....

(e) Counsel must be alert to, and avoid where appropriate, under the law all potential and actual conflicts of interest that would impair the ability to represent a client.

(f) The attorney shall explain to the client those decisions that ultimately must be made by the client and the advantages and disadvantages inherent in these choices. These decisions are: whether to plead guilty or not guilty and to alter such plea; whether to be tried by a jury or a court; whether to testify at trial; whether to appeal, and whether to waive his/her right to a speedy trial.

(g) The attorney should explain that final decisions concerning trial strategy, after full consideration with the client and after investigation of the applicable facts and law, are ultimately to be made by the attorney....

(h) Counsel's obligation to the client continues on all matters until and unless another attorney is assigned and/or files an appearance. Counsel should fully cooperate with successor counsel.

(i) Counsel should be aware of and protect the client's right to a speedy trial, unless strategic considerations warrant otherwise.

(j) Unless the prejudice outweighs the benefits, counsel should seek any necessary recess or continuance of any proceeding for which counsel is inadequately prepared....

(k) Consistent with the obligations and constraints of both court and ethical rules, counsel should make reasonable efforts to seek the most advantageous forum for the client's case, e.g. motions to change venue, etc.

(l) Where counsel is unable to communicate with client because of either language or mental disability, the attorney shall take whatever steps are necessary to insure that he/she is able to communicate with the client and that the client understands the proceedings. Such steps would include having counsel obtain expert assistance to assist with the matter.

(m) Counsel should be prompt for all court appearances and appointments and, if a delay is unavoidable, should take necessary steps to inform the client, the court, and minimize the inconvenience to others.

American Bar Association Juvenile Justice Standards: Counsel For Private Parties

3.1 The nature of the relationship

(a) Client's interest's paramount. However engaged, the lawyer's principal duty is the representation of the client's legitimate interests. Considerations of personal and professional advantage or convenience should not influence counsel's advice or performance.

(b) Determination of client's interests.

(i) Generally. In general, determination of the client's interests in the proceedings, and hence the plea to be entered is ultimately the responsibility of the client after full consultation with the attorney.

(ii) Counsel for the juvenile.

[a] Counsel for the respondent in a delinquency or in need of supervision proceeding should ordinarily be bound by the client's definition of his or her interests with respect to admission or denial of the facts or conditions alleged. It is appropriate and desirable for counsel to advise the client concerning the probable success and consequences of adopting any posture with respect to those proceedings. . .

[c] In delinquency and in need of supervision proceedings where it is locally permissible to so adjudicate very young persons, and in child protective proceedings, the respondent may be incapable of considered judgment in his or her own behalf.


STANDARD 2.4
Obligations Of Counsel Regarding Pretrial Release

When a client is in custody, counsel should explore with the client the pretrial release of the client under the conditions most favorable to the client and attempt to secure that release.

Related Standards and Guidelines

NLADA Guideline 2.1 - General Obligations of Counsel Regarding Pretrial Release

The attorney has an obligation to attempt to secure the pretrial release of the client under the conditions most favorable and acceptable to the client.

NLADA Guideline 2.3 - Pretrial Release Proceedings

(a) Counsel should be prepared to present to the appropriate judicial officer a statement of the factual circumstances and the legal criteria supporting release and, where appropriate, to make a proposal concerning conditions of release.

(b) Where the client is not able to obtain release under the conditions set by the court, counsel should consider pursuing modification of the conditions of release under the procedures available.

(c) If the court set conditions of release which require the posting of a monetary bond or the posting of real property as collateral for release, counsel should make sure the client understands the available options and the procedures that must be followed in posting such assets. Where appropriate, counsel should advise the client and others acting in his or her behalf how to properly post such assets.

(d) Where the 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.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

8. Securing Client's Release. Counsel shall take reasonable steps to secure the client's release from custody under the least restrictive conditions possible.

American Bar Association Juvenile Justice Standards: Counsel For Private Parties

6.4 Detention.

(a) If the client is detained. . . the lawyer should immediately consider all steps that may in good faith be taken to secure the child's release from custody.

(c) The lawyer should not personally guarantee the attendance or behavior of the client or any other person, whether as surety on a bail bond or otherwise.

New York State Bar Association: Law Guardian Representation Standards

Standard B-3

If detention has been requested, a strong argument for release should be advanced, including the introduction of any facts ascertained through interviewing of the child or others. Alternatives to detention, or, at least, secure detention, should be argued. If the child is nevertheless placed in detention, a probable cause hearing should be requested.

Standard C-3

Evidence, if any, which militates against continued detention should be gathered, including school records, affidavits, and witnesses who could testify concerning the lack of probable cause or present alternatives to detention.

Commentary:

A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, p. 32

'Effective representation and advocacy at the earliest stage of the proceedings may have a significant influence on the ultimate disposition of the case. Juveniles who are securely detained prior to adjudication-rather than released to parents or placed in community-based programs-are much more likely to be incarcerated at disposition than youth who have not been detained, regardless of the charges against them. Thus, it is vital that defenders explore alternatives to secure detention as early as possible.


STANDARD 2.5
Initial Court Appearances

Counsel should preserve all of the client's constitutional and statutory rights at initial court appearances.

Related Standards and Guidelines

NLADA Guideline 3.1 - Presentment and Arraignment

The attorney should preserve the client's rights at the initial appearance on the charges by:

(1) entering a plea of not guilty in all but the most extraordinary circumstance where a sound tactical reason exists for not doing so;

(2) requesting a trial by jury, if failure to do so may result in the client being precluded from later obtaining a trial by jury;

(3) seeking a determination of whether there is probably cause to support the charges alleged and, if there is not probably cause, or other grounds exist for dismissal, requesting that the court dismiss the charge or charges;

(4) requesting a timely preliminary hearing if it is provided for under the rules of the court unless there is a sound tactical reason not to do so.

NLADA Guideline 3.2 Preliminary Hearing

(a) Where is client is entitled to a preliminary hearing, the attorney should take steps to see that the hearing is conducted timely unless there are strategic reasons for not doing so.

(b) In preparing for the preliminary hearing, the attorney should become familiar with:

(1) the elements of each of the offenses alleged;

(2) the law of the jurisdiction for establishing probably cause;

(3) factual information which is available concerning probable cause.

NLADA Guideline 3.3 - Prosecution Requests for Non-Testimonial Evidence

The attorney 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), the circumstances in which the defendant may refuse to do so, the extent to which counsel may participate in the proceedings, and the record of the proceedings required to be maintained.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

9. Filing Appearance; Arraignment on Complaint or Preliminary Hearing on Petition. Counsel shall promptly file an appearance and shall be present at the arraignment on the complaint or preliminary hearing on petition, unless counsel is not appointed until after that proceeding has occurred, or unless counsel and the client have made other satisfactory arrangements.

10. Preliminary Review and Discovery. Counsel shall conduct a preliminary review of the available evidence and applicable law; and, in felony and delinquency cases, this review should be before the preliminary examination or probable cause hearing.

11. Conducting Preliminary Examinations or Probate [sic] Cause Hearings. In a felony or delinquency case, counsel should evaluate the client's best interest in deciding whether to hold or waive the preliminary examination or probable cause hearing and discuss with the client the considerations relevant to that decision.

12. Appearance at Arraignment on Information. In a felony case, counsel shall appear at the arraignment on the information unless a written waiver of arraignment has been filed in conformity with the applicable court rule.

13. Insuring Propriety of Evidentiary Procedures. Counsel shall take reasonable steps to ensure that police or prosecution procedures for obtaining non-testimonial evidence are properly conducted.

Case Life of Adult Criminal Case

V. FURTHER PROCEEDINGS
Check Grand Jury results.
A. Set for arraignment.
B. Generate more release options, follow up with release conditions as needed.
C. Advise client of Grand Jury result, arraignment date and time.
D. Set call back schedule with trial assistant if no complainant (misdemeanor) or cannot proceed (felony).

VI. ARRAIGNMENT

A. Advise court as to why client is not there (stay bench warrant).
B. Representation at arraignment.

1. Not guilty.
2. Preserve rights.
3. Advise court if mental defense.
4. Release on recog if appropriate.
5. Request further proceedings dates and times.

Massachusetts Committee for Public Counsel Services (1988)

3.2 Probable Cause Hearing,

(e) Counsel should be certain that the proceedings are being adequately recorded. Counsel should be prepared to challenge the prosecution's showing of probable cause on each element and on aggravating elements. Counsel should take maximum discovery advantage of the hearing, such as by filing appropriate motions and using compulsory process and sequestration. Counsel should not present affirmative proof, especially the client's testimony, unless there is a sound tactical reason for doing so which overcomes the inadvisability of disclosing the defense case at this stage.

(f) Where appropriate, counsel should consider pursuing the alternative of a court retaining jurisdiction over a lesser-included offense.

American Bar Association Juvenile Justice Standards: Counsel For Private Parties

7.3 (b) Other motions. Where the circumstances warrant, counsel should promptly make any motions material to the protection and vindication of the client's rights, such as motions to dismiss the petition, to suppress evidence, for mental examination, or appointment of an investigator or expert witness, for severance, or to disqualify a judge. Such motions should ordinarily be made in writing when that would be required for similar motions in civil or criminal proceedings in the jurisdiction. If a hearing on the motion is required, it should be scheduled at some time prior to the adjudication hearing if there is any likelihood that consolidation will work to the client's disadvantage.

New York State Bar Association: Law Guardian Representation Standards

Standard B-1. The petition and supporting papers should be examined carefully. If any defects are found, appropriate preliminary motions should be filed, such as a motion to dismiss.

Commentary:

A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, p. 32

'Attorneys' work during the pretrial period of juvenile cases is critical to obtaining favorable outcomes for their clients. It is during this time that attorneys must investigate the facts, obtain discovery from prosecutors, acquire additional information about their clients' personal histories, file motions on behalf of their clients, and advocate for clients at probable cause hearings and other pretrial hearings. This stage of the case sets the foundation for strategies at adjudication hearings, negotiations with prosecutors, and development of appropriate dispositions.'


STANDARD 2.6
Independent Investigation

Counsel should promptly conduct an independent review and investigation of the case, including obtaining information, research and discovery necessary to prepare the case for trial or hearing.

Cases and Statutes

Counsel must conduct an adequate investigation of the facts. United States v. Cronic, 80 L Ed2d 657, 671 (1984); State v. Smith, 140 Ariz 355, 681 P2d 1374 (1984); Krummacher, supra at 875; DeCoster I, supra at 1203; Ewing v. Williams, supra at 396 n. 5; United States v. Williams, 631 F2d 198, 211, 212 (9th Cir 1980); Tucker, supra at 593; United States v. Porterfield, 624 F2d 122, 1230124 (10th Cir. 1980); State v. Vargas, 74 Or App 588, 596 (1985); Proffit v. United States, 582 F2d 854, 858-859 (4th Cir. 1978); United States v. Baynes, 622 F2d 66, 69 (3rd Cir. 1980); Hines v. Enomoto, 658 F2d 667 (9th Cir. 1981); DeHart v. State, 55 Or App 254, 258, 265 (1981). Defense counsel is obligated to perform all necessary legal investigation, researching all relevant issues of law. People v. Ibarra, 34 Cal. Rptr. 863, 386 P2d 487, 490 (1963); In Re Williams, 81 Cal. Rptr. 784, 460 P2d 984 (1969); Krummacher v. Gierloff, 290 Or 867, 875; DeCoster II, supra at 278.

Related Standards and Guidelines

Oregon Code of Professional Responsibility
DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer

NLADA Guideline 4.1 - Investigation

(a) Counsel has a duty to conduct an independent investigation regardless of the accused's admissions or statements to the lawyer of facts concerning guilt. The investigation should be conducted a promptly as possible.

(b) Sources of investigative information may include the following:

(1) Charging Documents Copies of all charging documents in the case should be obtained and examined to determine the specific charges that have been brought against the accused. The relevant statutes and precedents should be examined to identify:

(A) the elements of the offense(s) with which the accused is charged;

(B) the defenses, ordinary and affirmative, that may be available;

(C) any defects in the charging documents, constitutional or otherwise, such as statute of limitations or double jeopardy.

(2) The accused If not previously conducted, an in-depth interview of the client should be conducted as soon as possible and appropriate after appointment or retention of counsel. The interview with the client should be used to:

(A) seek information concerning the incident or events giving rise to the charge(s) or improper police investigative practices or prosecutorial conduct which affects the client's rights;

(B) explore the existence of other potential sources of information relating to the offense;

(C) collect information relevant to sentencing

(3) Potential witnesses Counsel should consider whether to interview the potential witnesses, including any complaining witnesses and others adverse to the accused. If the attorney conducts such interviews of potential witnesses, he or she should attempt to do so in the presence of a third person who will be available, if necessary, to testify as a defense witness at trial. Alternatively, counsel should have an investigator conduct such interviews.

(4) The police and prosecution Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports. Where necessary, counsel should pursue such efforts through formal and informal discovery unless a sound tactical reason exists for not doing so.

(5) Physical evidence Where appropriate, counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant or sentencing.

(6) The scene Where appropriate, counsel should attempt to view the scene of the alleged offense. This should be done under circumstance as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, and lighting conditions).

(7) Expert assistance Counsel should secure the assistance of experts where it is necessary or appropriate to:

(A) the preparation of the defense;

(B) adequate understanding of the prosecution's case;

(C) rebut the prosecution's case.

NLADA Guideline 4.2 - Formal and Informal Discovery

(a) Counsel has a duty to pursue as soon as practicable discovery procedures provided by the rules of the jurisdiction and to pursue such informal discovery methods as may be available to supplement the factual investigation of the case. In considering discovery requests, counsel should take into account that such requests may trigger reciprocal discovery obligations.

(b) Counsel should consider seeking discovery of the following items:

(1) potential exculpatory information;

(2) the names and addresses of all prosecution witnesses, their prior statements, and criminal record, if any;

(3) all oral and/or written statements by the accused, and the details of the circumstances under which the statements were made;

(4) the prior criminal record of the accused and any evidence of other misconduct that the government may intend to use against the accused;

(5) all books, papers, documents, photographs, tangible objects, buildings or places, or copies, descriptions, or other representations, or portions thereof, relevant to the case;

(6) all results or reports of relevant physical or mental examinations, and of scientific tests or experiments, or copies thereof;

(7) statements of co-defendants.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

14. Discovery. Counsel shall pursue discovery of the prosecution case, by informal methods if available, and by formal methods if necessary. In felony cases, counsel shall comply with the applicable rules for reciprocal discovery.

15. Defense Investigation. Counsel shall conduct a timely investigation of the prosecution case and potentially viable defense theories.

16. Keeping the Client Informed. Counsel shall keep the client apprised of the progress of the case and shall timely inform the client of pleadings filed in the client's behalf and orders and opinions issued by the court in the case.

17. In-depth Interview. Counsel shall conduct an in-depth client interview before trial or plea.

18. Obtaining Expert and Investigative Assistance. Counsel shall seek to obtain expert assistance, including investigation needed to meet the prosecution case or prepare a defense.

19. Reviewing Applicable Law. Counsel shall be familiar with the law applicable to the offense(s) charged, lesser included offenses, potential defense, and the admissibility of potential prosecution and defense evidence.

20. Obtaining Transcripts of Prior Proceedings. Where necessary for preparation of the defense, counsel shall obtain and read transcripts of prior proceedings in the case or in related proceedings.

Massachusetts Committee for Public Counsel Services (1988)

IV Pretrial Preparation, 4.4

Among the discovery material counsel should consider seeking, through motions if necessary, are the following items under the control of all pertinent law enforcement agencies:

(a) details of all identification procedures, including examination of any photographs shown and selected;

(b) written and oral statements of defendant/co-defendant(s);

(c) copies of statements by potential witnesses;

(d) copies of all official reports, e.g. police, arson, hospital, results of any scientific test;

(e) inspection of physical evidence;

(f) list of potential witnesses and addresses;

(g) names and addresses of any witnesses expected to offer expert opinions and the substance of their anticipated testimony;

(h) probation records of all potential witnesses;

(i) copies of Grand Jury minutes;

(j) exculpatory evidence, including promises, rewards, inducements made to witnesses;

(k) any other item helpful to prepare and try the case (e.g. 911 tapes and videotapes).

Case Life of Adult Criminal Case

VII. POST ARRAIGNMENT

A. Demand discovery.

B. Obtain and review police reports.

C. Review evidence alone and with client - evaluate evidence with client.

1. Make a witness list.

2. Identify motions or challenges.

a. Theory of case.

b. Potential defenses.

3. Point out strengths and weaknesses of case to client including probable outcome and consequences.

D. Review alternatives.

1. Civil compromise.

2. Diversion.

3. Plea.

4. Jury/court trial.

E. Explain court procedures including next court date, time and place.

F. Explain and emphasize attorney/client privilege, obtain any waivers, releases, or agreements necessary for effective representation.

G. Review social, community alternatives.

H. Re-emphasize FTA law, importance of following court and pretrial release responsibilities.

I. Make sure client has attorney's and trial assistant's business cards.

J. Escort client out of building.

K. During interview - clear calendar for client, have appointment when support staff is available.

L. Prepare and present ex parte appointments of experts, investigator, medical reports, aid and assist, transport orders.

M. File notice of defenses as mandated by law, reciprocal discovery.

N. Investigation.

O. Research, draft motions, continue working on alternatives.

P. If in custody be prepared for daily inquiries from client re: case status and progress made.

Q. Handle calls from concerned agencies, family, friends, other lawyers.

R. Generate meeting with co-defendant's lawyers, obtain permission from co-defendant's lawyers to talk with co-defendant or witnesses.

S. Schedule time to meet with D.A. and complainant if necessary.

American Bar Association Juvenile Justice Standards: Counsel For Private Parties

7.3 Discovery and motion practice.

(a) Discovery.

(i) Counsel should promptly seek disclosure of any documents, exhibits or other information potentially material to representation of clients in juvenile court proceedings. If such disclosure is not readily available through informal processes, counsel should diligently pursue formal methods of discovery including, where appropriate, the filing of motions for bills of particulars, for discovery and inspection of exhibits, documents and photographs, for production of statements by and evidence favorable to the respondent, for production of a list of witnesses, and for the taking of depositions.

(ii) In seeking discovery, the lawyer may find that rules specifically applicable juvenile court proceedings do not exist in a particular jurisdiction or that they improperly or unconstitutionally limit disclosure. In order to make possible adequate representation of the client, counsel should in such cases investigate the appropriateness and feasibility of employing discovery techniques available in criminal or civil proceedings in the jurisdiction.

New York State Bar Association: Law Guardian Representation Standards

Standard A-1

The law guardian should interview the child to ascertain the detailed facts concerning the crime charged and the facts surrounding the child's arrest and questioning (if the law guardian is not assigned until the initial appearance, the law guardian should request a brief adjournment to carry out these functions).

Standard A-2

At the initial interview the law guardian should carefully ascertain the child's involvement, if any, in the alleged crime; the child's possible involvement should be examined on a confidential basis without the presence of the parents.

Standard C-1

The law guardian should attempt to interview major witnesses, such as complainant or victim who may testify at the probable cause hearing and obtain copies of any statements such witnesses may have made, as well as copies of relevant police reports.

Standard D-1

If a full fact-finding hearing is a possibility, the law guardian should conduct interviews with the respondent and witnesses, both defense and prosecution. If helpful, the scene of the occurrence should be visited.

Standard D-3

If necessary because the case is unusually complicated or for other valid reasons, an investigator or experts, such as mental health specialists, should be retained.

Standard D-4

If there is any reasonable probability of a full hearing, the scope of testimony and possible cross-examination should be carefully prepared with the child and major defense witnesses.

Commentary:

A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, p. 30

'It is also vital that defenders take time to keep clients informed before and after court appearances and other significant events. Going through the system can be a confusing and frightening process. Young people often have incorrect notions of what might happen to them. Clients should be told exactly how to get in touch with counsel and when their attorney will next be in contact. Clients should be advised of what to do if rearrested and what their responsibilities are between court appearances.


STANDARD 2.7
Pretrial Motions; Hearings Regarding Ability To Aid And Assist And Waiver Of Juvenile Court Jurisdiction

Counsel should research, prepare, file and argue appropriate pretrial motions whenever there is reason to believe the client is entitled to relief. Counsel should be prepared to provide quality representation and advocacy for the client at any hearings regarding the client's ability to aid and assist and waiver of juvenile court jurisdiction.

Cases and Statutes

In the initial stages of appointment, defense counsel must be prepared to take all procedural steps necessary to protect the defendant's legal rights. ABA Standards, sec. 4-3.6. Motions for psychiatric evaluations must be made whenever there is a reasonable possibility of success, as well as motions to suppress illegally obtained evidence, for change of venue, continuance, severance or dismissal. Arrowood v. Clusen, 732 F2d 1364 (7th Cir. 1984); King v. Cupp, 68 Or App 460 (984); Moran v. Morris, 478 F. Supp. 145 (C.D. Cal. 1979); United States v. Easter, 539 F2d 663 (8th Cir. 1976); Cooper v. Fitzharris, 586 F2d 1325 (9th Cir. 1978).

Related Standards and Guidelines

NLADA Guideline 5.1 - The Decision to File Pretrial Motions

(a) Counsel should consider filing an appropriate motion whenever 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.

(b) The decision to file pretrial motions should be made after thorough investigation, and after considering the applicable law in light of the circumstances of each case. Among the issues that counsel should consider addressing in a pretrial motion are:

(1) the pretrial custody of the accused;

(2) the constitutionality of the implicated statute or statutes;

(3) the potential defects in the charging process;

(4) the sufficiency of the charging document;

(5) the propriety and prejudice of any joinder of charges or defendants in the charging document;

(6) the discovery obligations of the prosecution and the reciprocal discovery obligations of the defense;

(7) the suppression of evidence gathered as a result of violations of the Fourth, Fifth or Sixth Amendments to the United States Constitution, or corresponding or additional state constitutional provisions, including:

(A) the fruits of illegal searches or seizures;

(B) involuntary statements or confessions;

(C) statements or confessions obtained in violation of the accused's right to counsel, or privilege against self-incrimination;

(D) unreliable identification evidence which would give rise to a substantial likelihood of irreparable misidentification.

(8) suppression of evidence gathered in violation of the accused's right to counsel, or privilege arising out of state or local law;

(9) access to resources or experts which may be denied to an accused because of his or her indigence;

(10) the defendant's right to a speed trial;

(11) the defendant's right to a continuation in order to adequately prepare his or her case;

(12) matters of trial evidence which may be appropriately litigated by means of a pretrial motion in limine;

(13) matters of trial or courtroom procedure.

(c) Counsel should withdraw or decide not to file a motion only after careful consideration, and only after determining whether the filing of a motion may be necessary to protect the defendant's rights against later claims of waiver or procedural default. In making this decision, counsel should remember that a motion may have many objectives in addition to the ultimate relief requested by the motion. Counsel thus should consider whether:

(1) the time deadline for filing pretrial motions warrants filing a motion to preserve the client's rights, pending the results of further investigation;

(2) changes in the governing law might occur after the filing deadline which could enhance the likelihood that relief ought to be granted;

(3) later changes in the strategic and tactical posture of the defense may occur which affect the significance of potential pretrial motions.

NLADA Guideline 5.2 - Filing and Arguing Pretrial Motions

(a) Motions should be filed in a timely manner, should comport with the formal requirements of the court rules and should succinctly inform the court of the authority relied upon. In filing a pretrial motion, counsel should be aware of the effect it might have upon the defendant's speedy trial rights.

(b) When a hearing on a motion requires the taking of evidence, counsel's preparation for the evidentiary hearing should include:

(1) investigation, discovery and research relevant to the claim advanced;

(2) the subpoenaing of all helpful evidence and the subpoenaing and preparation of all helpful witnesses;

(3) full understanding of the burdens of proof, evidentiary principles and trial court procedures applying to the hearing, including the benefits and costs of having the client testify.

NLADA Guideline 5.3 - Subsequent Filing of Pretrial Motions

Counsel should be prepared to raise during the subsequent proceedings any issue which is appropriately raised pretrial, but could not have been so raised because the facts supporting the motion were unknown or not reasonably available. Further, counsel should be prepared to renew a pretrial motion if new supporting information is disclosed in later proceedings.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

21. Consideration of Pretrial Motions. Whenever there exists a good faith reason to believe that the applicable law may entitle the client to relief which is within the court's discretion to grant, counsel should consider filing an appropriate motion.

22. Consulting Client on Pretrial Motions. While the ultimate power to decide whether to file a motion or to refrain from filing a motion is vested in counsel, counsel should consult with the client concerning these alternative courses of action.

23. Filing Pretrial Motions. The motions counsel should consider filing include:

(a) pretrial motions reasonably available on the facts which might lead to reduction or dismissal of the charge(s);

(b) motions to suppress illegally obtained evidence;

(c) motions to exclude arguably inadmissible substantive or impeachment evidence which is damaging to the defense unless there is strategic benefit to the client in having evidence admitted;

(d) procedural motions required by the facts of the case to ensure the fairness of the proceedings and to preserve claims for appellate review.

25. Filing Notice of Affirmative Defense. Counsel shall file timely notices of affirmative defenses if required by law.

New York State Bar Association: Law Guardian Representation Standards

Standard D-2

Every possible defense, including mental disease or defect or lack of intent, should be considered.

Standard D-5

The full range of discovery permitted under the Family Court Act should be considered and appropriate requests or motions filed.

Standard D-6

The full range of appropriate pre-trial motions (e.g. discovery, suppression, inspection, Wade, Huntley) should be carefully considered and, when relevant, filed on a timely basis. Similarly, appropriate pre-trial hearings should be requested.

Standard D-9

The strength and weaknesses of the prosecution case should be fully evaluated from the point of view of both fact-finding and disposition. The defense strategy should be developed with full consultation, in terms the child can understand, with the child and his parent. The law guardian's position, goals and strategies should be agreed to by the child.

Standard D-11

The law guardian should insure that the time requirements for motions and convening a fact-finding hearing are complied with.


STANDARD 2.8
Pretrial Negotiations And Admission Agreements

Counsel should:
1. with the consent of the client explore diversion and other informal and formal admission or disposition agreements with regard to the allegations;
2. fully explain to the client the rights that would be waived by a decision to enter into any admission or disposition agreement;
3. keep the client fully informed of the progress of the negotiations;
4. convey to the client any offers made by the prosecution and the advantages and disadvantages of accepting the offers;
5. continue to preserve the client's rights and prepare the defense notwithstanding ongoing negotiations; and
6. not enter into any admission or disposition agreement on behalf of the client without the client's authorization.

Cases and Statutes

Failure to advise defendant of the possibility of a minimum sentence prior to guilty plea is basis for post conviction relief if defendant did not know of minimum and it would have made a difference in his decision to plead guilty. Moen v. Peterson, 312 Or 503, 824 P2d 404 (1991); Hartzog v. Keeney, 304 Or 57, 724 P2d 600 (1987); Failure to advise defendant of dangerous offender statute unless defendant knew of statute anyway, Meyers v. Maass, 106 Or App 32, 806 P2d 521 (1991). Failure to submit tentative plea agreement to judge for purpose of getting judge to concur and follow procedure set forth by ORS 135.432(2). Failure to advise defendant that plea agreement was not binding on judge. Trujillo v. Maass, 312 Or 431, 822 P2d 703 (1991) Incorrectly advising defendant that his record could be expunged where defendant conditioned his plea of guilty on being able to expunge his record. Long v. State of Oregon, 130 Or App 198, 880 P2d 509 (1984).

Related Standards and Guidelines

Oregon Code of Professional Responsibility
DR 5-107 Settling Similar Claims of Clients

NLADA Guideline 6.1 - The Plea Negotiation Process and the Duties of Counsel

(a) Counsel should explore with the client the possibility and desirability of researching 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 be a decision to enter a plea and not proceed to trial.

(b) Counsel ordinarily obtain the consent of the client before entering into any plea negotiation.

(c) Counsel should keep the client fully informed of any continued plea discussion and negotiations and convey to the accused any offers made by the prosecution for a negotiated settlement.

(d) Counsel should not accept any plea agreement without the client's express authorization.

(e) The existence of ongoing tentative plea negotiations with the prosecution should not prevent counsel from taking steps necessary to preserve a defense.

NLADA Guideline 6.2 - The Contents of the Negotiation

(a) In order to develop an overall negotiation plan, counsel should be fully aware of, and make sure the client is fully aware of :

(1) the maximum term of imprisonment and fine or restitution that may be ordered, and any mandatory punishment or sentencing guideline system;

(2) the possibility of forfeiture of assets;

(3) other consequences of conviction such as deportation, and civil disabilities;

(4) any possible and likely sentence enhancements or parole consequences;

(5) the possible and likely place and manner of confinement;

(6) the effect of good-time credits on the sentence of the client and the general range of sentences for similar offenses committed by defendants with similar backgrounds.

(b) In developing a negotiation strategy, counsel should be completely familiar with:

(1) concessions that the client might offer the prosecution as part of a negotiated settlement, including but not limited to:

(A) not to proceed to trial on the merits of the charges;

(B) to decline from asserting or litigating any particular pretrial motions;

(C) an agreement to fulfill specified restitution conditions and/or participation in community work or service programs, or in rehabilitation or other programs.

(D) providing the prosecution with assistance in prosecuting or investigating the present case or other alleged criminal activity.

(2) benefits the client might obtain from a negotiated settlement, including, but not limited to an agreement:

(A) that the prosecution will not oppose the client's release on bail pending sentencing or appeal;

(B) that the defendant may enter a conditional plea to preserve the right to litigate and contest certain issues affecting the validity of a conviction;

(C) to dismiss or reduce one or more of the charged offenses either immediately, or upon completion of a deferred prosecution agreement;

(D) that the defendant will not be subject to further investigation or prosecution for uncharged alleged criminal conduct;

(E) that the defendant will receive, with the agreement of the court, a specified sentence or sanction or a sentence or sanction within a specified range;

(F) that the prosecution will take, or refrain from taking, at the time of sentencing and/or in communications with the preparer of the official presentence report, a specified position with respect to the sanction to be imposed on the client by the court;

(G) that the prosecution will not present, at the time of sentencing and/or in communication with the preparer of the official presentence report, certain information;

(H) that the defendant will receive, or the prosecution will recommend, specific benefits concerning the accused's place and/or manner of confinement and/or release on parole and the information concerning the accused's offense and alleged behavior that may be considered in determining the accused's date of release from incarceration.

(c) In conducting plea negotiations, counsel should be familiar with:

(1) the various types of pleas that may be agreed to, including a plea of guilty, a plea of nolo contendre, a conditional plea of guilty and a plea in which the defendant is not required to personally acknowledge his or her guilt (Alford plea);

(2) the advantages and disadvantages of each available plea according to the circumstances of the case;

(3) whether the plea agreement is binding on the court and prison and parole authorities.

(d) In conducting plea negotiations, counsel should attempt to become familiar with the practices and policies of the particular jurisdiction, judge and prosecuting authority which may affect the content and likely results of negotiated plea bargains.

NLADA Guideline 6.3 - The Decision to Enter a Plea of Guilty

(a) Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement, and the advantages and disadvantages and the potential consequences of the agreement.

(b) The decision to enter a plea of guilty rests solely with the client, and counsel should not attempt to unduly influence that decision.

NLADA Guideline 6.4 - Entry of the Plea before the Court

(a) Prior to the entry of the plea, counsel should:

(1) make certain that the client understands the rights he or she will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;

(2) make certain that the client fully and completely understands the conditions and limits of the plea agreement and the maximum punishment, sanctions and other consequences the accused will be exposed to by entering a plea;

(3) explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering the questions of the judge and providing a statement concerning the offense.

(b) When entering the plea, counsel should make sure the full content and conditions of the plea agreement are placed on the record before the court.

(c) After entry of the plea, counsel should be prepared to address the issue of release pending sentencing. Where the client has been released pretrial, counsel should be prepared to argue and persuade the court that the client's continued release is warranted and appropriate. Where the client is in custody prior to the entry of the plea, counsel should, where practicable, advocate for and present to the court all reasons warranting the client's release on bail pending sentencing.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

26. Negotiation of Plea. Where appropriate, counsel shall attempt to negotiate the most favorable plea agreement possible under the circumstances.

27. Informing the Client of Plea Negotiations. Counsel shall accurately evaluate and convey to the client any offers of a negotiated plea.

Massachusetts Committee for Public Counsel Services (1988)

V. Disposition by Plea or Admission

5.5 Where an attorney believes that the client's desires are not in the client's best interest, the attorney may attempt to persuade the client to change her/her position. If the client remains unpersuaded, however, the attorney should assure the client he/she will defend the client vigorously.

5.6 Counsel must not attempt to unduly influence or coerce the accused into pleading guilty or to admitting to sufficient facts by any means, including, but not limited to, overstating the consequences, or by threatening to withdraw from representing the accused if he/she decided not to accept the proposed agreement and to proceed to trial.

Case Life of Adult Criminal Case
IV. MISDEMEANOR - CUSTODY PRETRIAL - PLEA/SENTENCING

A. Need alternatives developed.

B. Review any existing reports alone/with client.

C. Initiate any investigation warranted.

D. Explain significance of plea/types of pleas/plea contract, trials.

E. Complete/review plea petition.

F. Prepare sentencing statements, review with client.

G. Docket and do plea and sentencing.

H. Go over advice of rights with client.

I. Pull up all other existing charges for negotiation/disposition or set other court matters (e.g., P.V.) as necessary.

J. Direct and supervise trial assistant re: having alternatives in place.

K. Assemble letters in support or witnesses for sentencing.

Case Life of Adult Criminal Case
VIII. PRETRIAL CONFERENCE

A. Review file (if felony).

B. Negotiate plea.

C. Present alternatives.

D. Candid review of position re: trial, corroborate with defense, discovery, motions, legal theory.

E. Communicate pretrial offer to client, answer questions, assist client with making up mind, advise client of next court date.

F. If misdemeanor, obtain offer.

G. Check conflicts with trial date, pick alternative dates with D.A. if necessary.

H. If plea, docket with chief criminal court, advise client; iron out any problems with D.A., if not attend certification, sit there and wait.

I. Ex parte motion for new dates.

J. File motions, observe thirty-five day rule.

K. Issue subpoenas.

L. Develop trial notebook.

M. Prepare exhibits.

N. Coordinate witnesses.

O. Substantive trial preparation - final theory.

1. Prepare witnesses.

2. Outline direct and cross examination.

3. Draft opening and closing.

4. Prepare jury instructions.

5. Voir dire.

6. Make sure D.A. has been given witness statements and notice of other physical evidence available for review.

American Bar Association Juvenile Justice Standards: Counsel For Private Parties

7.1 Adjudication without trial.

(a) Counsel may conclude, after full investigation and preparation, that under the evidence and the law the charges involving the client will probably be sustained. Counsel should so advise the client and, if negotiated please are allowed under prevailing law, may seek the client's consent to engage in plea discussions with the prosecuting agency. Where the client denies guilt, the lawyer cannot properly participate in submitting a plea of involvement when the prevailing law requires that such a plea be supported by an admission of responsibility of fact.

(b) The lawyer should keep the client advised of all developments during plea discussions with the prosecuting agency and should communicate to the client all proposals made by the prosecuting agency. Where it appears that the client's participation in psychiatric, medical, social or other diagnostic or treatment regime would be significant in obtaining a desired result, the lawyer should so advise the client and, when circumstances warrant, seek the client's consent to participation in such a program.

New York State Bar Association: Law Guardian Representation Standards

Standard D-8

Dispositional alternatives should be carefully explored at this point, including possible community based programs or other dispositions which involve the minimum feasible loss of liberty. A dispositional strategy should be formulated prior to reaching negotiated agreement or the fact-finding hearing.

Standard D-10

The law guardian should not agree to an admission unless a) pre-trial discovery and evaluation has revealed no legal impediment to a finding, b) the child has been fully advised, in terms he can understand, of the facts, the alternatives, the consequences and the rights he is waiving, and c) the disposition is agreed to or there is an agreed upon range or limitation; an admission should not be entered without the intelligent consent of the child.


STANDARD 2.9
Trial

Counsel should be prepared to provide quality representation and advocacy for the client at any court or jury trial.

Cases and Statutes

Defense counsel must be adequately prepared to control and direct the course of the case. ABA Standards, sec. 4-5.1; Krummacher, supra at 975. This includes calling witnesses, having arranged for their appearance, making necessary objections, and impeaching state witnesses where appropriate. Tucker, supra at 593; Howe v. Cupp, 55 Or App 247 (1981); DeCoster II, supra; United States v. Moore, 432 F2d 730 (3rd Cir. 1970). Defense counsel must interpose appropriate objections to the form and content of questions as well as any objectionable responses to those questions. Failure to conduct significant cross-examination or to impeach witnesses with prior inconsistent statements reflected grossly inadequate trial preparation. Tucker, supra at 593; Hussick v. Oregon, 19 Or App 915, 919 (1974); Rook v. Cupp, 18 Or App 608 (1974); Counsel has to advocate the defense with professional skill and judgement. Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981). Failure of counsel to present corroborating evidence of alibi, Yeager v. Maass, 93 Or App 561, 763 P2d 184 (1988); Failing to object to 'acquittal first' (requiring a finding of not guilty before determining guilt on a lesser charge) instructions is basis for post-conviction relief. Tarwater v. Cupp, 304 Or 639, 748 P2d 125 (1988); Peaslee v. Keeney, 81 Or App 488, 728 P2d 948 (1986).

Related Standards and Guidelines

Oregon Code of Professional Responsibility
DR 7-106 Trial Conduct
DR 7-107 Trial Publicity
DR 7-108 Communication with or Investigation of Jurors
DR 7-109 Contact with Witnesses
DR 7-110 Contact with Officials

NLADA Guideline 7.1 - General Trial Preparation

(a) The 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.

(b) Where appropriate, counsel should have the following materials available at the time of trial:

(1) copies of all relevant documents filed in the case;

(2) relevant documents prepared by investigators;

(3) voir dire questions;

(4) outline or draft of opening statement;

(5) cross-examination plans for all possible prosecution witnesses;

(6) direct examination plans for all prospective defense witnesses;

(7) copies of defense subpoenas;

(8) prior statements of all prosecution witnesses (e.g., transcripts, police reports);

(9) prior statements of all defense witnesses;

(10) reports from defense experts;

(11) a list of all defense exhibits, and the witnesses through whom they will be introduced;

(12) originals and copies of all documentary exhibits;

(13) proposed jury instructions with supporting case citations;

(14) copies of all relevant statutes and cases;

(15) outline or draft of closing arguments.

(c) Counsel should be fully informed as to 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.

(d) Counsel should decide if it is beneficial to secure an advance ruling on issues likely to arise at trial (e.g., use of prior convictions to impeach the defendant) and, where appropriate, counsel should prepare motions and memoranda for such advance rulings.

(e) Throughout the trial process, counsel should endeavor to establish a proper record for appellate review. As part of this effort, counsel should request, whenever necessary, that all trial proceedings be recorded.

(f) 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 appropriate clothing;

(g) Counsel should plan with the client the most convenient system for conferring throughout the trial. Where necessary, counsel should seek a court order to have the client available for conferences.

(h) Throughout preparation and trial, counsel should consider the potential effects that particular actions may have upon sentencing if there is a finding of guilt.

NLADA Guideline 7.2 - Voir Dire and Jury Selection

(a) Preparation

(1) Counsel should be familiar with the procedures by which a jury venire is selected in the particular jurisdiction and should be alert to any potential legal challenges to the composition or selection of the venire.

(2) Counsel should be familiar with the local practices and the individual trial judge's procedures for selecting a jury from a panel of the venire, and should be alert to any potential legal challenges to these procedures.

(3) Prior to jury selection, counsel should seek to obtain a prospective juror list.

(4) Where appropriate, counsel should develop voir dire questions in advance of trial. Counsel should tailor voir dire questions to the specific case. Among the purposes voir dire questions should be designed to serve are the following:

(A) to elicit information about the attitudes of individual jurors, which will inform about peremptory strikes and challenges for cause;

(B) to convey to the panel certain legal principles which are critical to the defense case;

(C) to preview the case for the jurors so as to lessen the impact of damaging information which is likely to come to their attention during the trial;

(D) to present the client and the defense case in a favorable light, without prematurely disclosing information about the defense case to the prosecutor;

(E) to establish a relationship with the jury, when the voir dire is conducted by an attorney.

(5) Counsel should be familiar with the law concerning mandatory and discretionary voir dire inquires so as to be able to defend any request to ask particular questions of prospective jurors.

(6) Counsel should be familiar with the law concerning challenges for cause and peremptory strikes. Counsel should also be aware of any local rules concerning whether peremptory challenges need to be exhausted in order to preserve for appeal any challenges for cause which have been denied.

(7) Where appropriate, counsel should consider whether to seek expert assistance in the jury selection process.

(b) Examining the Prospective Jurors

(1) Counsel should consider permission to personally voir dire the panel. If the court conducts voir dire, counsel should consider submitting proposed questions to be incorporated into the court's voir dire.

(2) Counsel should take all steps necessary to protect the voir dire record for appeal, including, where appropriate, filing a copy of the proposed voir dire questions or reading proposed questions into the record.

(3) If the voir dire questions may elicit sensitive answers, counsel should consider requesting that questioning be conducted outside the presence of the remaining jurors and that the court, rather than counsel, conduct voir dire as to those sensitive questions.

(4) In a group voir dire, counsel should avoid asking questions which may elicit responses which are likely to prejudice other prospective jurors.

(c) Challenges

(1) Counsel should consider challenging for cause all persons about whom a legitimate argument can be made for actual prejudice or bias relevant to the case when it is likely to benefit the client.

NLADA Guideline 7.3 - Opening Statement

(a) Prior to delivering an opening statement, counsel should ask for sequestration of witnesses, unless a strategic reason exists for not doing so.

(b) Counsel should be familiar with the law of the jurisdiction and the individual trial judge's rules regarding the permissible content of an opening statement.

(c) Counsel should consider the strategic advantages and disadvantages of disclosure of particular information during opening statement and of deferring the opening statement until the beginning of the defense case.

(d) Counsel's objective in making an opening statement may include the following:

(1) to provide an overview of the defense case;

(2) to identify the weaknesses of the prosecution's case;

(3) to emphasize the prosecution's burden of proof;

(4) to summarize the testimony of witnesses, and the role of each in relationship to the entire case;

(5) to describe the exhibits which will be introduced and the role of each in relationship to the entire case;

(6) to clarify the juror's responsibilities;

(7) to state the ultimate inferences which counsel wishes the jury to draw.

(e) Counsel should consider incorporating the promises of proof the prosecutor makes to the jury during opening statement in the defense summation.

(f) Whenever the prosecutor oversteps the bounds of a proper opening statement, counsel should consider objecting, requesting a mistrial, or seeking cautionary instructions, unless tactical considerations weight against any such objections or requests. Such tactical considerations may include, but are not limited to:

(1) the significance of the prosecutor's error;

(2) the possibility than an objection might enhance the significance of the information in the jury's mind;

(3) whether there are any rules made by the judge against objecting during the other attorney's opening argument.

NLADA Guideline 7.4 - Confronting the Prosecution's Case

(a) Counsel should attempt to anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for judgement of acquittal.

(b) Counsel should consider the advantages and disadvantages of entering into stipulations concerning the prosecution's case.

(c) In preparing for cross-examination, counsel should be familiar with applicable law and procedures concerning cross-examinations and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, counsel should be prepared to question witnesses as to the existence of prior statements which they may have made or adopted.

(d) In preparing for cross-examination, counsel should:

(1) consider the need to integrate cross-examination, the theory of the defense and closing argument;

(2) consider whether cross-examination of each individual witness is likely to generate helpful information;

(3) anticipate those witnesses the prosecutor might call in its case-in-chief in rebuttal;

(4) consider a cross-examination plan for each of the anticipated witnesses;

(5) be alert to inconsistencies in a witness testimony;

(6) be alert to possible variations in witnesses testimony;

(7) review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses;

(8) where appropriate, review relevant statutes and local police regulations for possible use in cross-examining police witnesses;

(9) be alert to issues relating to witness credibility, including bias and motive for testifying.

(e) Counsel should consider conducting a voir dire examination of potential prosecution witnesses who may not be competent to give particular testimony, including expert witnesses whom the prosecutor may call. Counsel should be aware of the applicable law of the jurisdiction concerning competency of witnesses in general and admission of expert testimony in particular in order to be able to raise appropriate objections.

(f) 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.

(g) Where appropriate, at the close of the prosecution's case and out of the presence of the jury, counsel should move for a judgement 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.

NLADA Guideline 7.5 - Presenting the Defense Case

(a) Counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, counsel should consider 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.

(b) Counsel should discuss with the client all of the considerations relevant to the client's decision to testify.

(c) Counsel should be aware of the elements of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.

(d) In preparing for presentation of a defense case, counsel should, where appropriate:

(1) develop a plan for direct examination of each potential defense witness;

(2) determine the implications that the order of witnesses may have on the defense case;

(3) consider the possible use of character witnesses;

(4) consider the need for expert witnesses.

(e) In developing and presenting the defense case, counsel should consider the implications it may have for a rebuttal by the prosecutor.

(f) Counsel should prepare all witnesses for direct and possible cross-examination. Where appropriate, counsel should also advise witnesses of suitable courtroom dress and demeanor.

(g) Counsel should conduct redirect examination as appropriate.

(h) At the close of the defense case, counsel should renew the motion of judgment of acquittal on each charged count.

NLADA Guideline 7.6 - Closing Argument

(a) Counsel should be familiar with the substantive limits on both prosecution and defense summation.

(b) Counsel should be familiar with the local rules and the individual judge's practice concerning time limits and objections during closing argument, and provisions for rebuttal argument by the prosecution.

(c) In developing closing argument, counsel should review the proceedings to determine what aspects can be used in support of defense summation and, where appropriate, should consider:

(1) highlighting weaknesses in the prosecutor's case;

(2) describing favorable inferences to be drawn from the evidence;

(3) incorporating into the argument:

(A) helpful testimony from direct and cross-examinations;

(B) verbatim instructions drawn from the jury charge;

(C) responses to anticipated prosecution arguments;

(4) the effects of the defense arguments on the prosecution's rebuttal argument.

(d) whenever the prosecutor exceeds the scope of permissible argument, counsel should consider objecting, requesting a mistrial, or seeking cautionary instructions unless tactical considerations suggest otherwise. Such tactical considerations may include, but are not limited to:

(1) whether counsel believes that the case will result in a favorable verdict for the client;

(2) the need to preserve the objection for a double jeopardy motion;

(3) the possibility that an objection might enhance the significance of the information in the jury's mind.

NLADA Guideline 7.7 - Jury Instructions

(a) Counsel should be familiar with the local rules and the individual judge's practices concerning ruling on proposed instructions, charging the jury, use of standard charges and preserving objections to the instructions.

(b) Where appropriate, counsel should submit modifications of the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense. Where possible, counsel should provide caselaw in support of the proposed instructions.

(c) Where appropriate, counsel should object to and argue against improper instructions proposed by the prosecution.

(d) If the court refuses to adopt instructions requested by counsel, or gives instructions over counsel's objection, counsel should take all steps necessary to preserve the record, including, where appropriate, filing a copy of the proposed instructions or reading proposed instructions into the record.

(e) During delivery of the charge, counsel should be alert to any deviations from the judge's planned instructions, object to deviations unfavorable to the client, and, if necessary, request additional or curative instructions.

(f) If the court proposes giving supplemental instructions to the jury, either upon request of the jurors or upon their failure to reach a verdict, counsel should request that the judge state the proposed charge to counsel before it is delivered to the jury.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

28. Preserving Right to Jury Trial. If the case proceeds to trial, counsel should evaluate the client's best interests in deciding whether to waive a jury trial and discuss with the client the considerations relevant to that decision.

29. Voir Dire. Counsel should seek personal information regarding prospective jurors, either through voir dire or examination of jury questionnaires. Counsel shall ask voir dire questions pertinent to the case. Where required, counsel should submit voir dire questions to the court.

30. Opening Statement. Counsel shall make an opening statement consonant with the overall defense strategy, either at the beginning of trial or the beginning of the defense case, unless strategic reasons dictate otherwise.

31. Cross-Examination. Counsel shall cross-examine and impeach prosecution witnesses to the extent and in the manner which reasonably appears likely to benefit the defense.

32. Waiving Prosecution Witnesses. Counsel may waive the production of prosecution witnesses only where the appearance of those witnesses has no strategic benefit to the defense and the client is informed of the waiver.

33. Client's Decision to Testify: Counsel's Recommendation. Counsel shall discuss with the client the considerations relevant to the client's decision whether to testify and shall recommend the decision which counsel believes to be in the client's best interest. The ultimate decision whether to testify is the client's.

34. Preparation of Defense Witnesses. Counsel shall strive to prepare defense witnesses for direct and cross-direct examination and advise them regarding appropriate courtroom dress and demeanor.

35. Objections: Offers of Proof. Counsel shall object to damaging inadmissible evidence unless the benefit to the client from its admission outweighs the harm, and shall make such other objections as are necessary to protect the client's right to fair trial and to appellate review. Where defense evidence is excluded, counsel should make such offer of proof as is necessary to protect the record.

36. Production of Defense Evidence. Counsel shall make reasonable efforts to produce witnesses and evidence necessary to present the defense case persuasively.

37. Directed Verdict. Counsel shall move outside the jury's presence, for a directed verdict at the close of the prosecution's proof if appropriate reasons for such motion exist. The motion should be repeated at the close of the defense case. If the verdict is unfavorable to the client, counsel should repeat the motion after verdict as a motion for judgement of acquittal.

38. Closing Argument. Counsel shall present a closing argument which explains why the client should not be found guilty as charged.

39. Jury Instructions. Counsel shall request jury instructions which present the applicable law in a manner most favorable to the defense. Counsel shall object to instructions which are legally erroneous or which, on the facts of the case, are unfairly damaging to the defense and shall place on the record or in the court file requests for instructions which are denied by the court.

Massachusetts Committee for Public Counsel Services (1988)

6.3 Bench Trial or Jury Trial

(a) The decision to proceed to trial with or without a jury rests solely with the client after complete advice of counsel.

(b) Counsel should fully advise the client of the advantages and disadvantages of either a bench trial or a jury trial. Counsel should exercise great caution before advising a jury waiver, especially without thorough discovery, including knowledge of the likely availability of prosecution witnesses, and their likely response to cross examination.

6.4 Voir Dire and Jury Selection

(c) Challenges

(3) In exercising challenges for cause or peremptory strikes, counsel should consider both the panelists who may replace a person who is removed and the total number of peremptory challenges available.

(4) Counsel should make every effort to consult with the client in exercising challenges.

(5) Counsel should be alert to prosecutorial misuse of peremptory challenges and should seek appropriate remedial measures.

Case Life of Adult Criminal Case
IX. COURT CALENDAR - CALL

A. Advise client to be at call.

B. Request offer if not yet received.

X. POST CALL

XI. TRIAL

A. Meet the judge and staff if not yet acquainted.

B. Motion in limine.

C. Voir dire.

D. State's opening statement - object appropriately.

E. Defense opening.

F. Make objections as appropriate to state's direct.

G. Cross examine state's witnesses.

H. MJOA - set up theory during state's case in chief; then cross examine on objections.

I. Last minute preparation with client and witnesses.

J. Try case.

K. Object appropriately to state's cross.

L. Closing statement.

M. Make second motion for MJOA.

N. Discuss jury instructions.

O. Make motion on record.

P. Ensure jury will review only those exhibits admitted into evidence.

Q. Check verdict forms.

R. Listen clearly to jury instructions.

S. Put any exceptions to jury instructions or omissions on the record.

T. Notify court where you will be; have client available.

U. Prepare client for verdict.

V. Prepare answers to jury questions.

W. Accept verdict/hung jury.

X. Poll jury.

American Bar Association Juvenile Justice Standards:
Counsel For Private Parties

7.2 Formality, in general.

While the traditional formality and procedure of criminal trials may not in every respect be necessary to the proper conduct of juvenile court proceedings, it is the lawyer's duty to make all motions, objections or requests necessary to protection of the client's rights in such form and at such time as will best serve the clients legitimate interests at trial or on appeal

New York State Bar Association:
Law Guardian Representation Standards

Standard E-1

The law guardian should present an opening statement.

Standard E-2

Prosecution witnesses should be cross-examined and an attempt made to impeach such witnesses by appropriate questioning, inconsistent prior statements, and other evidentiary methods.

Standard E-3

Appropriate expert witnesses should be called.

Standard E-4

Defense witnesses, including the child, should be questioned in accordance with pre-trial preparation; if necessary, character or rebuttal witnesses should be called.

Standard E-5

The law guardian should always present a summation.

Standard E-6

If appropriate, post-trial motions and briefs should be submitted.


STANDARD 2.10
Sentencing Or Disposition

Counsel should:
1. be knowledgeable in disposition provisions and alternatives;
2. ensure the client is not harmed by inaccurate information or information that is not properly before the court in determining the disposition to be imposed;
3. ensure all reasonably available mitigating and favorable information is presented to the court;
4. in delinquency cases and in adult criminal cases as appropriate, be prepared to present a disposition plan on behalf of the client, as well as to respond to inaccurate or unfavorable information presented by other parties;
5. in delinquency cases, advocate for or develop dispositional resources that will aid the client in obtaining the least restrictive disposition, and obtain all appropriate orders to protect the youth's rights and interests.

Cases and Statutes

Representation at sentencing, as in a trial, must be adequate. Lyons v. Pearce, supra at 567; Carroll v. Cupp, 49 Or App 773, 776 (1980); DeCoster II, supra at 281. Counsel should object to any sentence inconsistent with the law, (e.g. Mandatory minimum not permitted for juvenile. Wells v. Peterson, 315 Or 233, 844 P2d 192 (1992). Trial attorney failed to object to sentencing order including restitution and costs although because the defendant was indigent and sentenced to prison, he could not pay restitution and costs. Steffans v. Keeney, 82 Or App 625, 728 P2d 948 (1986). Counsel requested court recommend against deportation as permitted by federal law. Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1984). Counsel should move to withdraw plea if prosecutor fails to follow plea agreement. Chilcote v. Zenon, 105 Or App 393, 804 P2d 521 (1991).

Related Standards and Guidelines

NLADA Guideline 8.1 - Obligations of Counsel in Sentencing

(a) Among counsel's obligations in the sentencing process are:

(1) where a defendant chooses not to proceed to trial, to ensure that a plea agreement is negotiated with consideration of the sentencing, correctional, and financial implications;

(2) to ensure the client is not harmed by inaccurate information or information that is not properly before the court in determining the sentence to be imposed;

(3) to ensure all reasonably available mitigating and favorable information, which is likely to benefit the client, is presented to the court;

(4) to develop a plan which seeks to achieve the least restrictive and burdensome sentencing alternative that is most acceptable to the client, and which can reasonably be obtained based on the facts and circumstances of the offense, the defendant's background, the applicable sentencing provisions, and other information pertinent to the sentencing decision;

(5) to ensure all information presented to the court which may harm the client and which is not shown to be accurate and truthful or is otherwise improper is stricken from the text of the presentence investigation report before distribution of the report;

(6) to consider the need for and availability of sentencing specialists, and to seek the assistance of such specialists whenever possible and warranted.

NLADA Guideline 8.2 - Sentencing Options, Consequences and Procedures

(a) Counsel should be familiar with the sentencing provisions and options applicable to the case, including:

(1) any sentencing guideline structure;

(2) deferred sentence, judgement without a finding, and diversionary probation;

(3) expungement and sealing of records;

(4) probation or suspension of sentence and permissible conditions of probation;

(5) restitution;

(6) fines;

(7) court costs;

(8) imprisonment including any mandatory minimum requirements;

(9) confinement in mental institutions;

(10) forfeiture.

(b) Counsel should be familiar with direct and collateral consequences of the sentence and judgement, including:

(1) credit for pre-trial detention;

(2) parole eligibility and applicable parole release ranges;

(3) effect of good-time credits on the client's release date and how those credits are earned and calculated;

(4) place of confinement and level of security and classification;

(5) self-surrender to place of custody;

(6) eligibility for correctional programs and furloughs;

(7) available drug rehabilitation programs, psychiatric treatment, and health care;

(8) deportation;

(9) use of the conviction for sentence enhancement in future proceedings;

(10) loss of civil rights;

(11) impact of a fine or restitution and any resulting civil liability;

(12) restrictions on or loss of license.

(c) Counsel should be familiar with the sentencing procedures, including:

(1) the effect that plea negotiations may have upon the sentencing discretion of the court;

(2) the procedural operation of any sentencing guideline system;

(3) the effect of a judicial recommendation against deportation;

(4) the practices of the officials who prepare the presentence report and the defendant's rights in that process;

(5) the access to the presentence report by counsel and the defendant;

(6) the prosecution's practice in preparing a memorandum on punishment;

(7) the use of a sentencing memorandum by the defense; the opportunity to challenge information presented to the court for sentencing purposes;

(8) the opportunity to challenge information presented to the court for sentencing purposes;

(9) the availability of an evidentiary hearing to challenge information and the applicable rules of evidence and burdens of proofs at such a hearing;

(10) the participation that victims and prosecution or defense witnesses may have in the sentencing proceedings.

NLADA Guideline 8.3 - Preparation for Sentencing

(a) In preparing for sentencing, counsel should consider the need to:

(1) inform the client of the applicable sentencing requirements, options, and alternatives, and the likely and possible consequences of the sentencing alternatives;

(2) maintain regular contact with the client prior to the sentencing hearing, and inform the client of the steps being taken in preparation for sentencing;

(3) obtain from the client relevant information concerning such subjects as her or her background and personal history, prior criminal record, employment history and skills, education, medical history and condition, and financial status, and obtain from the client sources through which the information can be corroborated;

(4) ensure that the client has adequate time to examine the presentence report;

(5) inform the client of his or her right to speak at the sentencing proceeding and assist the client in preparing the statement, if any, to be made to the court, considering the possible consequences that and admission of guilt may have upon an appeal, subsequent retrial or trial on other offenses;

(6) prepare the client to be interviewed by the official preparing the presentence report;

(7) inform the client of the effects that admissions and other statements may have upon an appeal, retrial, parole proceedings, or other judicial proceedings, such as forfeiture or restitution proceedings;

(8) inform the client of the sentence or range of sentences counsel will ask the court to consider; if the client and counsel disagree as to the sentence or sentences to be urged upon the court, counsel shall inform the client of his or her right to speak personally for a particular sentence or sentences;

(9) collect documents and affidavits to support the defense position and, where relevant, prepare witnesses to testify at the sentencing hearing; where necessary, counsel should specifically request the opportunity to present tangible and testimonial evidence.

NLADA Guideline 8.4 - The Official Presence Report

(a) Counsel should be familiar with the procedures concerning the preparation, submission, and verification of the presentence investigation report or similar document. In addition, counsel should:

(1) determine whether a presentence report will be prepared and submitted to the court prior to sentencing; where preparation of the report is optional, counsel should consider the strategic implications of requesting that a report be prepared;

(2) provide to the official preparing the report relevant information favorable to the client, including, where appropriate, the defendant's version of the offense;

(3) review the completed report;

(4) take appropriate steps to ensure that erroneous or misleading information which may harm the client is deleted from the report;

(5) take appropriate steps to preserve and protect the client's interests where the defense challenges information in the presentence report as being erroneous or misleading and;

A. the court refuses to hold a hearing on a disputed allegation adverse to the defendant;

B. the prosecution fails to prove an allegation;

C. the court finds an allegation not proved. Such steps include requesting that a new report be prepared with the challenged or unproved information deleted before the report or memorandum is distributed to correctional and/or parole officials.

(6) Where appropriate counsel should request permission to see copies of the report to be distributed to be sure that the information challenged has actually been removed from the report or memorandum.

NLADA Guideline 8.5 - The Prosecutors Sentencing Position

(a) Counsel should attempt to determine, unless there is a sound tactical reason for not doing so, whether the prosecution will advocate that a particular type or length of sentence be imposed.

(b) If a written sentencing memorandum is submitted by the prosecution, counsel should request to see the memorandum and verify that the information presented is accurate; if the memorandum contains erroneous or misleading information, counsel should take appropriate steps to correct the information unless there is a sound strategic reasons for not doing so.

(c) If the defense request to see the prosecution memorandum is denied, an application to examine the document should be made to the court or a motion made to exclude consideration of the report by the court and to prevent distribution of the memorandum to parole and correctional officials.

NLADA Guideline 8.6 - The Defense Sentencing Memorandum

(a) Counsel should prepare and present to the court a defense sentencing memorandum where there is a strategic reason for doing so. Among the topics counsel may wish to include in the memorandum are:

(1) challenges to incorrect or incomplete information in the official presentence report and any prosecution sentencing memorandum;

(2) challenges to improperly drawn inferences and inappropriate characteristics in the official presentence report and any prosecution sentencing memorandum;

(3) information contrary to that before the court which is supported by affidavits, letters, and public records;

(4) information favorable to the defendant concerning such matters as the offense, mitigating factors and relative culpability, prior offenses, personal background, employment record and opportunities, education background, and family and financial status;

(5) information which would support a sentencing disposition other than incarceration, such as the potential for rehabilitation or the nonviolent nature of the crimes;

(6) information concerning the availability of treatment programs, community treatment facilities, and community service work opportunities;

(7) information of a sentencing proposal.

NLADA Guideline 8.7 - The Sentencing Process

a. Counsel should be prepared at the sentencing proceeding to take the steps necessary to advocate fully for the requested sentence and to protect the client's interest.

b. Counsel should be familiar with the procedures available for obtaining an evidentiary hearing before the court in connection with the imposition of sentence.

c. In the event there will be disputed facts before the court at sentencing, counsel should consider requesting an evidentiary hearing. Where a sentencing hearing will be held, counsel should ascertain who has the burden of proving a fact unfavorable to the defendant, be prepared to object if the burden is placed on the defense, and be prepared to present evidence, including testimony of witnesses, to contradict erroneous or misleading information unfavorable to the defendant.

d. Where information favorable to the defendant will be disputed or challenged, counsel should be prepared to present supporting evidence, including testimony of witnesses, to establish the facts favorable to the defendant.

e. Where the court has the authority to do so, counsel should request specific orders of recommendations from the court concerning the place of confinement, parole eligibility, psychiatric treatment or drug rehabilitation, permission for the client to surrender directly to the place of confinement and against the deportation of the defendant.

f. Where appropriate, counsel should prepare the client to personally address the court.

State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

40. Preparing Client for Presentence or Dispositional Investigation. Counsel shall aid the client in preparing for a presentence or dispositional interview and shall advise the client of the potential consequences of making any previously undisclosed admissions of guilt.

41. Providing Information to Probation Officer. Where appropriate, counsel shall provide to the probation officer favorable information about the client and information about the availability of suitable alternatives to incarceration or detention. State Bar of Michigan 'Standards for Assigned Counsel,' (1995)

42. Review of Sentencing or Dispositional Information. Counsel shall review with the client the accuracy of any information to be presented to the sentencing judge, including any dispositional reports, the presentence report and the sentencing information report.

43. Correcting Sentencing or Dispositional Information. Counsel shall seek at or before sentencing or disposition to have incorrect, unfavorable information in any report corrected or stricken, to have information added to any report, and where applicable, to have harmful miscalculations of the sentencing guidelines score recomputed.

44. Presenting Information at Sentencing or Disposition. Counsel shall present to the sentencing court information favorable to the client and suitable dispositional alternatives to incarceration or detention, where appropriate.

45. Preparing Client for Sentencing or Disposition. Counsel shall aid the client in preparing for allocation at sentencing or disposition. The client should be informed sufficiently in advance of sentencing or disposition of the right to allocation in order to prepare for effective allocution.

Performance Standards for Attorneys: The Inmate Perspective

Sentencing Issues Related to the Presentence Investigation

1) Failure to impress upon the defendant/client the importance of the PSI.

2) Failure to recognize and challenge detrimental information.

3) Allowing judges to make nonspecific findings regarding important sentencing matters. This occurs when the court makes a finding regarding only the appropriate quantitative range of drugs or financial loss to be used in sentencing rather than the specific amount.

4) Failing to require the court to make a specific finding as to the scope of a conspiracy participant's understanding of the agreement or relevant conduct.

Performance Standards for Attorneys: The Inmate Perspective

Sentencing Issues Unrelated to the PSI

1) Neglecting to ask for downward departure or minimal participant consideration.

2) Failing to request the abatement of interest on fines and restitution.

3) Lack of diligence in obtaining clarification of ambiguous statements in the judgement, such as when payments must begin on a fine or restitution.

Case Life of Adult Criminal Case
XI. TRIAL (CONTINUED)

Y. If appropriate, request PSI, otherwise prepare client for PSI.

Z. Be present at PSI if needed.

AA Present supplemental materials/alternatives to PSI writer.

BB. Prepare for sentencing as outlined above.

CC. Obtain and review PSI alone and with client - isolate objections, present presentencing or seek D.A.'s stipulation to exclusion.

DD. Notice and advise of rights and PC rights.

EE. Be prepared to deal with issues raised, dangerous offender or sentencing guidelines.

American Bar Association Juvenile Justice Standards:
Counsel For Private Parties

9.1 In general.

The active participation of counsel at disposition is often essential to protection of clients' rights and to furtherance of their legitimate interests. In many cases the lawyer's most valuable service to clients will be rendered at this stage of the proceeding.

9.2 Investigation and preparation.

(a) Counsel should be familiar with the dispositional alternatives available to the court, with it's procedures and practices that the disposition stage, and with community services that might be useful in the formation of a dispositional plan appropriate to the client's circumstances.

(b) The lawyer should promptly investigate all sources of evidence including any reports or other information that will be brought to the court's attention, and interview all witnesses material to the disposition decision.

(i) If access to social investigation, psychological, psychiatric or other reports or information is not provided voluntarily or promptly, counsel should be prepared to seek their disclosure and time to study them through formal measures.

(ii) Whether or not social and other reports are readily available the lawyer has a duty independently to investigate the client's circumstances, including such factors as previous history, family relations, economic condition and any other information relevant to disposition.

(c) The lawyer should seek to secure the assistance of psychiatric, psychological, medical or other expert personnel needed for purposes of evaluation, consultation or testimony with respect to formation of a dispositional plan.

9.3 Counseling prior to disposition.

(a) The lawyer should explain to the client the nature of the disposition hearing, the issues involved and the alternatives open to the court. The lawyer should also explain fully and candidly the nature, obligations and consequences of any proposed dispositional plan, including the meaning of conditions of probation, the characteristics of any institution to which commitment is possible, and the probable duration of the client's responsibilities under the proposed dispositional plan. Ordinarily, the lawyer should not make or agree to a specific dispositional recommendation without the client's consent.

(b) When psychological or psychiatric evaluations are ordered by the court or arranged by counsel prior to disposition, the lawyer should explain the nature of the procedure to the client and encourage the client's cooperation with the person or persons administering the diagnostic procedure . . .

9.4 Disposition hearing.

(a) It is the lawyer's duty to insist that a proper procedure be followed throughout the disposition stage and that orders rendered be based on adequate reliable evidence.

(i) Where the dispositional hearing is not separate from adjudication or the court does not have before it all evidence required by statute, rules of court or the circumstances of the case, the lawyer should seek a continuance until such evidence can be presented if to do so would serve the client's interests.

(ii) The lawyer at disposition should be free to examine fully and to impeach any witness whose evidence is damaging to the client's interests and to challenge the accuracy, credibility and weight of any reports, written statements or other evidence before the court. The lawyer should not knowingly limit or forego examination or contradiction by proof of any witness, including a social worker or probation department officer when failure to examine fully will prejudice the client's interests. Counsel may seek to compel the presence of witnesses whose statements of fact or opinion are before the court or the production of other evidence on which conclusions of fact presented at disposition are based.

New York State Bar Association:
Law Guardian Representation Standards

Standard F-1

The law guardian should request the court to order reports which may be helpful, including mental health studies or other evaluations.

Standard F-2

Every realistic dispositional alternative should be explored, including, where relevant, specific placements with residential or non-residential programs; the law guardian should develop a specific dispositional plan to present to the court.

Standard F-3

If the law guardian's dispositional plan is likely to be disputed, potential witnesses, including parents, school officials or neighbors, should be interviewed; evidence should be gathered to support the specific dispositional plan.

Standard F-4

If helpful in forming or furthering the law guardian's dispositional plan, the law guardian should visit the child's home or meet with school officials or other relevant persons.

Standard F-5

The probation report should be read prior to the dispositional hearing.

Standard F-7

The desires of the child should be ascertained and the child and the parent should be advised of the potential alternatives. The child should fully consent to the specific disposition which the law guardian intends to present and argue.

Standard G-2

If appropriate in light of the seriousness of factual disputes or other reasons, the maker of relevant reports, including the probation officer, should be examined.

Standard G-5

The law guardian should present and argue a complete dispositional alternative consistent with the needs and desires of the child, including specific programs or dispositional orders, the specific duration f placement or other disposition and, if appropriate, alternative possibilities.

Standard H-1

The law guardian should explain to the child and the parents, in terms the child can understand, the disposition and its consequences, including the rights and possibilities of post-trial motions or requests for new hearings, the consequences of possible violations of the dispositional order and the continuing jurisdiction of the court.

Commentary:

A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, p.53

'Thus, attorneys need to be knowledgeable about eligibility requirements and funding mechanisms for various programs, including special education; 'nonlegal' topics such as the causes of delinquency and family conflict; policies and procedures of the agencies coming into contact with the court; ways to use the skills of other professionals such as psychiatrists or psychologists; and the availability of local programs and facilities for juvenile offenders.'


STANDARD 2.11
Post-Disposition Procedures

Counsel should be familiar with the procedures available to the client after disposition.

Cases and Statutes

Trial counsel must assist in the designation of the record. Accocella v. Allen, 288 Or 175, 187 (1979).

Related Standards and Guidelines

NLADA Guideline 9.1 - Motion for a New Trial

(a) Counsel should be familiar with the procedures available to request a new trial including the time period for filing such a motion, the effect it has upon the time to file a notice of appeal, and the grounds that can be raised.

(b) When a judgement of guilty has been entered against the defendant after trial, counsel should consider whether it is appropriate to file a motion for a new trial with the trial court. In deciding whether to file such a motion, the factors counsel should consider include:

(1) The likelihood of success of the motion, given the nature of the error or errors that can be raised;

(2) the effect that such a motion might have upon the defendant's appellate rights, including whether the filing of such a motion is necessary to, or will assist in, preserving the defendant's right to raise on appeal the issues that might be raised in the new trial motion.

NLADA Guideline 9.2 - Right to Appeal

(a) Counsel should inform the defendant of his or her right to appeal the judgement of the court and the action that must be taken to perfect an appeal. In circumstances where the defendant wants to file an appeal but is unable to do without the assistance of counsel, the attorney should file the notice in accordance with the rules of the court and take such other steps as are necessary to preserve the defendant's rights to appeal, such as ordering transcripts of the trial proceedings.

(b) Counsel's advice to the defendant should include an explanation of the right to appeal the judgement of guilty and, in those jurisdictions where it is permitted, the right to appeal the sentence imposed by the court.

(c) Where the defendant takes an appeal, trial counsel should cooperate in providing information to appellate counsel concerning the proceedings in the trial court.

NLADA Guideline 9.3 - Bail Pending Appeal

(a) Where a client indicates a desire to appeal the judgement and/or sentence of the court, counsel should inform the client of any right that may exist to be released on bail pending the disposition of the appeal.

(b) Where an appeal is taken and the client requests bail pending appeal, trial counsel should cooperate with appellate counsel in providing information to pursue the request for bail.

NLADA Guideline 9.4 - Self-Surrender

Where a custodial sentence has been imposed, counsel should consider requesting a stay of execution of the judgement to permit the client to report directly to the place of confinement.

NLADA Guideline 9.5 - Sentence Reduction

Counsel should inform the client of procedures available for requesting a discretionary review of, or reduction in the sentence imposed by the trial court, including any time limitations that apply to such a request.

NLADA Guideline 9.6 - Expungement or Sealing of Record

Counsel should inform the client of any procedures available for requesting that the record of conviction to be expunged or sealed.

Performance Standards for Attorneys: The Inmate Perspective

Post-Trial Issues

1) Failure to discuss or consider issues and ideas for the appeal proffered by the defendant.

2) Unwillingness to allow the defendant to review the appeal briefs prior to their filing.

3) A continuing reluctance to take calls or answer letters.

Performance Standards for Attorneys: The Inmate Perspective

Recommendations

1) Guidelines depicting acceptable time for response to client letters and phone calls.

2) Guidelines recommending that all possible defenses to a defendant's charges be explored prior to entering into plea negotiations.

3) The implementation of standards which define and convey the concept that the attorney is providing a service to the client and the relationship should therefore be conducted accordingly.

Case Life of Adult Criminal Case
XI. TRIAL (CONTINUED)

FF. Assist defendant with filing notice of appeal, motion for new trial, if appropriate.

GG. Provide any assistance needed to appeals attorney.

HH. Closing letters, time reports, billing to court.

II. Working with family, making arguments and preparing for parole board hearing.

JJ. Keep track of billing and modify office budget accordingly.

American Bar Association Juvenile Justice Standards:
Counsel For Private Parties

10.1 Relations with the client after disposition.

(a) The lawyer's responsibility to the client does not necessarily end with dismissal of the charges or entry of a final dispositional order. The attorney should be prepared to counsel and render or assist in securing appropriate legal services for the client in matters arising from the original proceeding.

(i) If the client has been found to be within the juvenile court's jurisdiction, the lawyer should maintain contact with both the client and the agency or institution involved in the disposition plan in order to ensure that the client's rights are respected and, where necessary, to counsel the client and the client's family concerning the dispositional plan.

(ii) Whether or not charges against the client have been dismissed, where the lawyer is aware that the client . . . needs and desires community or other medical, psychiatric, psychological, social or legal services, he or she should render all possible assistance in arranging for such services.

(b) The decision to pursue an available claim for post dispositional relief from judicial and correctional or other administrative determination related to juvenile court proceedings, including appeal, habeas corpus or an action to protect the client's right to treatment is ordinarily the client's responsibility after full consultation with counsel.

10.2 Post dispositional hearings before the juvenile court.

(a) The lawyer who represents a client during initial juvenile court proceedings should ordinarily be prepared to represent the client with respect to proceedings to review or modify adjudicative or dispositional orders made during earlier hearings or to pursue any affirmative remedies that may be available to the client under local juvenile court.

(b) The lawyer should advise the client of the pendency or availability of a post dispositional hearing or proceeding and of its nature, issues and potential consequences. Counsel should urge and, if necessary, seek to facilitate the prompt attendance at any such hearing of the client of any material witnesses who may be called.

10.3 Counsel on Appeal

(a) Trial counsel, whether retained or appointed by the court, should conduct the appeal unless new counsel is substituted by the client or by the appropriate court. Where there exists and adequate pool of competent counsel available for the assignment to appeals from juvenile court orders and substitution will not work substantial disadvantage to the client's interests, new counsel may be appointed in place of trial counsel. . .

(c) Counsel on appeal, after reviewing the record below and undertaking any other appropriate investigation, should candidly inform the client as to whether there are meritorious grounds for appeal and the probable results of any such appeal, and should further explain the potential advantages and disadvantages associated with appeal. However, appellate counsel should not seek to withdraw from a case solely because his or her own analysis indicates that the appeal lacks merit.

10.4 Conduct of appeal The rules generally governing conduct of appeals in criminal and civil cases govern conduct of appeals in juvenile court matters.

10.5 Post dispositional remedies: Protection of the client's right to treatment

(a) A lawyer who has represented a client through trial and/or appellate proceedings should be prepared to continue representation when post dispositional action, whether affirmative or defensive, is sought, unless new counsel is appointed at the request of the client or continued representation would, because of geographical considerations or other factors, work unreasonable hardship.

(b) Counsel representing a client in post dispositional matters should promptly undertake any factual or legal investigation in order to determine whether grounds exist for relief from juvenile court or administrative action. If there is reasonable prospect of a favorable result, the lawyer should advise the client and, if their interests are not adverse, the client's parents of the nature, consequences, probable outcome and advantages or disadvantages associated with such proceedings.

(c) The lawyer engaged in post dispositional representation should conduct those proceedings according to the principles generally governing representation in juvenile court matters.

New York State Bar Association:
Law Guardian Representation Standards

Standard H-3

The child and the parents should be advised in writing of the right to appeal, including the right to appeal as a poor person. The possibilities of appeal should be explored fully, including possible grounds. The law guardian should file a notice of appeal and assure that the appeal is perfected unless the child indicates explicitly and intelligently his decision to waive and appeal.

Standard H-3

The law guardian should examine the dispositional order to ensure that the order conforms to the agreed disposition or finding.

Commentary:

A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, p. 55

'The failure to maintain representation during the entire period of juvenile court jurisdiction is a serious problem. It means that attorneys do not monitor their clients' progress in programs and institutional placements or assure that the services ordered by courts are actually provided and that conditions in programs and institutions are lawful. As a consequence, needed modifications in court orders may not come to official attention until youth have acted out or committed new offenses. New counsel appointed at the post disposition stage are unlikely to develop a relationship with the children or their families, or have the background needed to best articulate their clients' needs and capabilities.'