Criminal Defense Lawyers and Judges in the US

1. Criminal Defense Lawyers and Judges in the US Public-Private Partnership for Justice Reform in Afghanistan February 25, 2010 David M. Siegel dsiegel@nesl.edu / 1 (617) 422-7270

2. Overview • Lawyer’s Duties • Zealous Representation • Candor to Tribunal • Preserve Court’s Impartiality and Decorum • Judge’s Duties • Promote integrity and avoid impropriety • Be impartial, competent and diligent

3. Defense Lawyer’s Duties Court Duty to Preserve Impartiality and Decorum of Tribunal Duty of Candor to Tribunal Defense Lawyer Client Duty to Zealously Represent Client

4. Duty of Candor to Tribunal • Lawyer may not knowingly • make false statement of law, fact or evidence to court, or • fail to correct a false statement of law, facts or evidence. • Lawyer must know or have reasonable basis to believe facts, but need not volunteer harmful evidence.

5. Duty of Candor: about Law • Judge asks lawyer: “Does law limit sentence to 2 years?” Law actually allows 4 year sentence. Must lawyer correct judge? • Judge tells lawyer: “I will sentence defendant to longest possible sentence of 2 years.” Law actually allows 4 year sentence. Must lawyer correct judge? • Judge tells lawyer: “I will sentence defendant to longest possible sentence. Isn’t that 2 years?” Law actually allows 4 year sentence. Must lawyer correct judge?

6. Duty to Preserve Court’s Impartiality and Decorum • Lawyers must • Not seek improper influence on court, and • Avoid ex parte communications. • No public statements likely to prejudice proceeding. • Example: Lawyer thinks judge made big mistake in trial. During trial, may lawyer • Complain in private to judge’s clerk? • Complain to judge in private? • Complain to newspaper?

7. Judge’s Duties • Promote integrity and avoid even appearance of impropriety. • Be impartial, competent and diligent by • Avoiding bias, prejudice or harassment; • Avoiding ex parte (one sided) communication; • Disqualifying self when impartiality might reasonably be questioned.

8. Judge’s Duty to Promote Integrity and Avoid Appearance of Impropriety • Judicial duties more important than personal or non-judicial activities for judge. • Judge must always comply with the law. • Judge must avoid even appearance of impropriety to promote public confidence in law.

9. Show no bias, prejudice or harassment based on Gender Race Religion Age Marital status Ethnicity Socioeconomic status Avoid Ex Parte (one-sided) contacts Disqualify self if he/she has Bias about a party or a lawyer; Knowledge of facts in case; Prior involvement in case as a lawyer, witness or judge; Economic interest in case; or Present involvement in the proceeding by anyone closer than cousin as lawyer, witness or party. Judge Must be Impartial, Diligent and Competent

10. Appearance of Impropriety: Bias • Judge calls prosecutor by full name and title, but calls defense lawyer by first name only. • Judge calls defense lawyer a “nice young woman.” • Judge calls defense lawyer “nice young man from the countryside.” • Prosecutor refers to witness as “nice young married woman.” • Are any of these improper?

11. Appearance of Impropriety: Disqualification • Judge was in university class with prosecutor, comes from same village, worked in same office for two years. • Ten years later, prosecutor brings case before judge. • Must judge disqualify himself from the case?

12. Appearance of Impropriety: Special Treatment • Judge has government car for official duties. • May judge give prosecutor a ride home in government car? • May judge give a friend (not a lawyer) a ride home in government car?

13. Tashakor / Me Herabaniستاس ې څخه مننه Thank you