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Effective and Competent Counsel – The Special Rules That Govern Colorado Criminal Defense Lawyers - Part 2

Standard 4 -4.4 Relations With Expert Witnesses
  1. Defense counsel who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert’s opinion on the subject. To the extent necessary, defense counsel should explain to the expert his or her role in the trial as an impartial witness called to aid the fact finders and the manner in which the examination of witnesses is conducted.
  2. Defense counsel should not pay an excessive fee for the purpose of influencing an expert’s testimony or fix the amount of the fee contingent upon the testimony an expert will give or the result in the case.
Standard 4 -4.5 Compliance With Discovery Procedure

Defense counsel should make a reasonably diligent effort to comply with a legally proper discovery request.

Standard 4 -4.6 Physical Evidence
  1. Defense counsel who receives a physical item under circumstances implicating a client in criminal conduct should disclose the location of or should deliver that item to law enforcement authorities only: (1) if required by law or court order, or (2) as provided in paragraph (d).
  2. Unless required to disclose, defense counsel should return the item to the source from whom defense counsel received it, except as provided in paragraph (c) and (d). In returning the item to the source, defense counsel should advise the source of the legal consequences pertaining to possession or destruction of the item. Defense counsel should also prepare a written record of these events for his or her file, but should not give the source a copy of such record.
  3. Defense counsel may receive the item for a reasonable period of time during which defense counsel: (1) intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of defense counsel’s representation of the client; or (5) cannot return it to the source. If defense counsel tests or examines the item, he or she should thereafter return it to the source unless there is reason to believe that the evidence might be altered or destroyed or used to harm another or return is otherwise impossible. If defense counsel retains the item, he or she should retain it in his or her law office in a manner that does not impede the lawful ability of law enforcement authorities to obtain the item.
  4. If the item received is contraband, i.e., an item possession of which is in and of itself a crime such as narcotics, defense counsel may suggest that the client destroy it where there is no pending case or investigation relating to this evidence and where such destruction is clearly not in violation of any criminal statute. If such destruction is not permitted by law or if in defense counsel’s judgment he or she cannot retain the item, whether or not it is contraband, in a way that does not pose an unreasonable risk of physical harm to anyone, defense counsel should disclose the location of or should deliver the item to law enforcement authorities.
  5. If defense counsel discloses the location of or delivers the item to law enforcement authorities under paragraphs (a) or (d), or to a third party under paragraph (c)(1), he or she should do so in the way best designed to protect the client’s interests.
PART V. – The Control and Direction of Litigation Standard 4 -5.1 Advising the Accused
  1. After informing himself or herself fully on the facts and the law, defense counsel should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.
  2. Defense counsel should not intentionally understate or overstate the risks, hazards, or prospects of the case to exert undue influence on the accused’s decision as to his or her plea.
  3. Defense counsel should caution the client to avoid communication about the case with witnesses, except with the approval of counsel, to avoid any contact with jurors or prospective jurors, and to avoid either the reality or the appearance of any other improper activity.
Standard 4 - 5.2 Control and Direction of the Case
  1. Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel include:
    1. what pleas to enter;
    2. whether to accept a plea agreement;
    3. whether to waive jury trial;
    4. whether to testify in his or her own behalf; and
    5. whether to appeal.
  2. Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate. Such decisions include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and what evidence should be introduced.
  3. If a disagreement on significant matters of tactics or strategy arises between defense counsel and the client, defense counsel should make a record of the circumstances, counsel’s advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relationship.
PART VI. - Disposition Without Trial Standard 4 -6.1 Duty to Explore Disposition Without Trial
  1. Whenever the law, nature, and circumstances of the case permit, defense counsel should explore the possibility of an early diversion of the case from the criminal process through the use of other community agencies.
  2. Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.
Standard 4 - 6.2 Plea Discussions
  1. Defense counsel should keep the accused advised of developments arising out of plea discussions conducted with the prosecutor.
  2. Defense counsel should promptly communicate and explain to the accused all significant plea proposals made by the prosecutor.
  3. Defense counsel should not knowingly make false statements concerning the evidence in the course of plea discussions with the prosecutor.
  4. Defense counsel should not seek concessions favorable to one client by any agreement which is detrimental to the legitimate interests of a client in another case.
  5. Defense counsel representing two or more clients in the same or related cases should not participate in making an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved.
Part VII. – The Trial Standard 4 -7.1 Courtroom Professionalism
  1. As an officer of the court, defense counsel should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism and by manifesting a professional attitude toward the judge, opposing counsel, witnesses, jurors, and others in the courtroom.
  2. Defense counsel should not engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before the judge.
  3. When court is in session, defense counsel should address the court and should not address the prosecutor directly on all matters relating to the case.
  4. Defense counsel should comply promptly with all orders and directives of the court, but defense counsel has a duty to have the record reflect adverse rulings or judicial conduct which counsel considers prejudicial to his or her client’s legitimate interests. Defense counsel has a right to make respectful requests for reconsiderations of adverse rulings.
  5. Defense counsel should cooperate with courts and the organized bar in developing codes of professionalism for each jurisdiction.
Standard 4 - 7.2 Selection of Jurors
  1. Defense counsel should prepare himself or herself prior to trial to discharge effectively his or her function in the selection of the jury, including the raising of any appropriate issues concerning the method by which the jury panel was selected and the exercise of both challenges for cause and peremptory challenges.
  2. In those cases where it appears necessary to conduct a pretrial investigation of the background of jurors, investigatory methods of defense counsel should neither harass nor unduly embarrass potential jurors or invade their privacy and, whenever possible, should be restricted to an investigation of records and sources of information already in existence.
  3. The opportunity to question jurors personally should be used solely to obtain information for the intelligent exercise of challenges. Defense counsel should not intentionally use the voir dire to present factual matter which defense counsel knows will not be admissible at trial or to argue counsel’s case to the jury.
Standard 4 - 7.3 Relations With Jury
  1. Defense counsel should not intentionally communicate privately with persons summoned for jury duty or impaneled as jurors prior to or during the trial. Defense counsel should avoid the reality or appearance of any such communications.
  2. Defense counsel should treat jurors with deference and respect, avoiding the reality or appearance of currying favor by a show of undue solicitude for their comfort or convenience.
  3. After discharge of the jury from further consideration of a case, defense counsel should not intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service. If defense counsel believes that the verdict may be subject to legal challenge, he or she may properly, if no statute or rule prohibits such course, communicate with jurors to determine whether such challenge may be available.
Standard 4 - 7.4 Opening Statement

Defense counsel’s opening statement should be confined to a statement of the issues in the case and the evidence defense counsel believes in good faith will be available and admissible. Defense counsel should not allude to any evidence unless there is a good faith and reasonable basis for believing such evidence will be tendered and admitted in evidence.

Standard 4 - 7.5 Presentation of Evidence
  1. Defense counsel should not knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to take reasonable remedial measures upon discovery of its falsity.
  2. Defense counsel should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.
  3. Defense counsel should not permit any tangible evidence to be displayed in the view of the judge or jury which would tend to prejudice fair consideration of the case by the judge or jury until such time as a good faith tender of such evidence is made.
  4. Defense counsel should not tender tangible evidence in the presence of the judge or jury if it would tend to prejudice fair consideration of the case, unless there is a reasonable basis for its admission in evidence. When there is any substantial doubt about the admissibility of such evidence, it should be tendered by an offer of proof and a ruling obtained.
Standard 4 -7.6 Examination of Witnesses
  1. The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily.
  2. Defense counsel’s belief or knowledge that the witness is telling the truth does not preclude cross-examination.
  3. Defense counsel should not call a witness in the presence of the jury who the lawyer knows will claim a valid privilege not to testify.
  4. Defense counsel should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.
Standard 4 - 7.7 Argument to the Jury
  1. In closing argument to the jury, defense counsel may argue all reasonable inferences from the evidence in the record. Defense counsel should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.
  2. Defense counsel should not express a personal belief or opinion in his or her client’s innocence or personal belief or opinion in the truth or falsity of any testimony or evidence.
  3. Defense counsel should not make arguments calculated to appeal to the prejudices of the jury.
  4. Defense counsel should refrain from argument which would divert the jury from its duty to decide the case on the evidence.
Standard 4 -7.8 Facts Outside the Record

Defense counsel should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court can take judicial notice.

Standard 4 -7.9 Post-trial Motions

Defense counsel’s responsibility includes presenting appropriate posttrial motions to protect the defendant’s rights.

Part VIII. – After Conviction Standard 4 - 8.1 Sentencing
  1. Defense counsel should, at the earliest possible time, be or become familiar with all of the sentencing alternatives available to the court and with community and other facilities which may be of assistance in a plan for meeting the accused’s needs. Defense counsel’s preparation should also include familiarization with the court’s practices in exercising sentencing discretion, the practical consequences of different sentences, and the normal pattern of sentences for the offense involved, including any guidelines applicable at either the sentencing or parole stages. The consequences of the various dispositions available should be explained fully by defense counsel to the accused.
  2. Defense counsel should present to the court any ground which will assist in reaching a proper disposition favorable to the accused. If a presentence report or summary is made available to defense counsel, he or she should seek to verify the information contained in it and should be prepared to supplement or challenge it if necessary. If there is no presentence report or if it is not disclosed, defense counsel should submit to the court and the prosecutor all favorable information relevant to sentencing and in an appropriate case, with the consent of the accused, be prepared to suggest a program of rehabilitation based on defense counsel’s exploration of employment, educational, and other opportunities made available by community services.
  3. Defense counsel should also insure that the accused understands the nature of the presentence investigation process, and in particular the significance of statements made by the accused to probation officers and related personnel. Where appropriate, defense counsel should attend the probation officer’s interview with the accused.
  4. Defense counsel should alert the accused to the right of allocution, if any, and to the possible dangers of making a statement that might tend to prejudice an appeal.
Standard 4 - 8.2 Appeal
  1. After conviction, defense counsel should explain to the defendant the meaning and consequences of the court’s judgment and defendant’s right of appeal. Defense counsel should give the defendant his or her professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal. Defense counsel should also explain to the defendant the advantages and disadvantages of an appeal. The decision whether to appeal must be the defendant’s own choice.
  2. Defense counsel should take whatever steps are necessary to protect the defendant’s rights of appeal.
Standard 4 - 8.3 Counsel on Appeal
  1. Appellate counsel should not seek to withdraw from a case solely on the basis of his or her own determination that the appeal lacks merit.
  2. Appellate counsel should give a client his or her best professional evaluation of the questions that might be presented on appeal. Counsel, when inquiring into the case, should consider all issues that might affect the validity of the judgment of conviction and sentence, including any that might require initial presentation in a postconviction proceeding. Counsel should advise on the probable outcome of a challenge to the conviction or sentence. Counsel should endeavor to persuade the client to abandon a wholly frivolous appeal or to eliminate contentions lacking in substance.
  3. If the client chooses to proceed with an appeal against the advice of counsel, counsel should present the case, so long as such advocacy does not involve deception of the court. When counsel cannot continue without misleading the court, counsel may request permission to withdraw.
  4. Appellate counsel has the ultimate authority to decide which arguments to make on appeal. When appellate counsel decides not to argue all of the issues that his or her client desires to be argued, appellate counsel should inform the client of his or her pro se briefing rights.
  5. In a jurisdiction with an intermediate appellate court, counsel for a defendant-appellant or a defendant-appellee should continue to represent the client if the prosecution seeks review in the highest court, unless new counsel is substituted or unless the court permits counsel to withdraw. Similarly, in any jurisdiction, such appellate counsel should continue to represent the client if the prosecution seeks review in the Supreme Court of the United States.
Standard 4 - 8.4 Conduct of Appeal
  1. Appellate counsel should be diligent in perfecting appeals and expediting their prompt submission to appellate courts.
  2. Appellate counsel should be accurate in referring to the record and the authorities upon which counsel relies in the presentation to the court of briefs and oral argument.
  3. Appellate counsel should not intentionally refer to or argue on the basis of facts outside the record on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.
Standard 4 - 8.5 Post-conviction Remedies

After a conviction is affirmed on appeal, appellate counsel should determine whether there is any ground for relief under other post-conviction remedies. If there is a reasonable prospect of a favorable result, counsel should explain to the defendant the advantages and disadvantages of taking such action. Appellate counsel is not obligated to represent the defendant in a post-conviction proceeding unless counsel has agreed to do so. In other respects, the responsibility of a lawyer in a post-conviction proceeding should be guided generally by the standards governing the conduct of lawyers in criminal cases.

Standard 4 - 8.6 Challenges to the Effectiveness of Counsel
  1. If defense counsel, after investigation, is satisfied that another defense counsel who served in an earlier phase of the case did not provide effective assistance, he or she should not hesitate to seek relief for the defendant on that ground.
  2. If defense counsel, after investigation, is satisfied that another defense counsel who served in an earlier phase of the case provided effective assistance, he or she should so advise the client and may decline to proceed further.
  3. If defense counsel concludes that he or she did not provide effective assistance in an earlier phase of the case, defense counsel should explain this conclusion to the defendant and seek to withdraw from representation with an explanation to the court of the reason therefor.
  4. Defense counsel whose conduct of a criminal case is drawn into question is entitled to testify concerning the matters charged and is not precluded from disclosing the truth concerning the accusation to the extent defense counsel reasonably believes necessary, even though this involves revealing matters which were given in confidence.
Effective and Competent Counsel the Special Rules That Govern Colorado Criminal Defense Lawyers

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