94- 649 C.M.R. ch. 102, § 7

Current through 2024-50, December 11, 2024

Section 649-102-7 - CONTROL & DIRECTION OF THE CASE

1. Theory of the Case. During investigation and trial preparation, defense counsel should develop and continually reassess a theory of the case.

2. Implementation

A. Defense counsel should develop an overall theory of the case that encompasses the best interest of the client and the realities of the client's situation in order to assist counsel in evaluating choices throughout the course of the representation.

B. Defense counsel should allow the case theory to focus the investigation and trial preparation of the case, seeking out and developing the facts and evidence that the theory makes material, but defense counsel should not become a "prisoner" of his or her theory.

3. Certain decisions relating to the conduct of the case are ultimately for the accused and other are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with defense counsel include:

A. what pleas to enter;

B. whether to accept a plea agreement;

C. whether to waive jury trial;

D. whether to testify in his or her own behalf;

E. whether to appeal.

4. 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.

5. 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, defense 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.

6. Defense counsel should explain that final decisions concerning trial strategy, after full consultation with the client, and after investigation of the applicable facts and law, are ultimately to be made by defense counsel. The client should be made aware that defense counsel is primarily responsible for deciding what motions to file, which witnesses to call, what questions to ask, and what other evidence to present. Implicit in the exercise of defense counsel's decision-making role in this regard is consideration of the client's input and full disclosure by defense counsel to the client of the factors considered by the attorney in making the decisions. Defense counsel should inform the client of an attorney's ethical obligation, informed by professional judgment, not to present frivolous matters or unfounded actions.

7. Presentment and Arraignment

A. Defense counsel should preserve the client's rights at the initial appearance on the charges by:

(1) advising the client to enter a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so or unless the client insists on pleading guilty despite counsel's advice to the contrary;

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

8. The Plea Negotiation Process and the Duties of Defense Counsel

A. Defense counsel should explore with the client the possibility and desirability of reaching 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 by a decision to enter a plea and not to proceed to trial.

B. Defense counsel should ordinarily obtain the consent of the client before entering into any plea negotiation.

C. Defense 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. Defense counsel should not accept any plea agreement without the client's express authorization. The decision to enter a plea of guilty rests solely with the client, and defense counsel should not attempt to unduly influence that decision.

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

9. The Decision to File Pretrial Motions

A. Defense 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 defense 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 co-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 the 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 client'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 any right, duty or privilege arising out of state or local law;

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

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

(11) the defendant's right to a continuance 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. Defense counsel should withdraw a motion 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 client's rights against later claims of waiver or procedural default.

10. 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, defense 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, defense 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.

11. Subsequent Filing of Pretrial Motions

Defense 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, defense counsel should be prepared to renew a pretrial motion if new supporting information is disclosed in later proceedings.

12. Trial Motions

Defense counsel should be aware that certain motions are generally reserved for the trial judge, e.g., motions in limine and motions to sequester.

13. Interlocutory Relief

Where appropriate, defense counsel should consider seeking interlocutory relief, under the applicable rule or statute, after an adverse pretrial ruling. The conduct of interlocutory hearings, including the submission of briefs and oral argument, are ordinarily the responsibility of the defense counsel, whether the hearing was initiated by defense counsel or by the prosecution.

14. 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 defense counsel.

B. Defense counsel should fully advise the client of the advantages and disadvantages of either a jury or jury-waived trial. Defense 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 responses to cross-examination.

15. Continuing Responsibility to Raise Issue of Client's Incompetence

A. Defense counsel should consider the client's competence to stand trial or to enter a plea whenever defense counsel has a good faith doubt as to the client's competence to proceed in the criminal case. Defense counsel may move for evaluation over the client's objection, and if necessary, defense counsel may make known to the court those facts which raise the good faith doubt of competence to proceed in the criminal case.

B. Where competency is at issue, defense counsel has a continuing duty to review and prepare the case for all court proceedings. Defense counsel should develop information relevant to the issue of dangerousness.

16. Entry of the Plea before the Court

A. Prior to the entry of the plea, defense 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 client 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 questions of the judge and providing a statement concerning the offense.

B. When entering a plea, defense counsel should make sure that the full content and conditions of the plea agreement are placed on the record by the court.

C. After entry of the plea, defense counsel should be prepared to address the issue of release pending sentencing. Where the client has been released pretrial, defense 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, defense counsel should, where practicable, advocate for the client's release on bail pending sentencing.

D. Subsequent to the acceptance of the plea, defense counsel should make every effort to review and explain the plea proceedings with the client and to respond to any client questions and concerns.

17. Consequences of Conviction

Defense counsel must also advise the client of the consequences of a conviction, including:

A. the maximum possible sentence of all offenses;

B. mandatory minimum sentences where applicable;

C. different or additional punishments where applicable, such as for second offenses, probation, violation or parole revocation consequences;

D. potential liability for enhanced punishment after subsequent arrest;

E. possible federal charges or penalty enhancements as well as the possible loss of eligibility for federal benefits;

F. conviction consequences for non-citizens;

G. Sex Offender Registration Act;

H. potential civil liabilities;

I. possible loss or suspension of driver's license under Maine or federal law;

J. possible loss of the right to possess a firearm.

18. The Decision to Enter a Plea of Guilty

A. Defense counsel should inform the client of any tentative negotiated agreement reached with the prosecution, explain to the client the full content of the agreement, and explain the advantages, disadvantages and potential consequences of the agreement.

B. The decision to enter a plea of guilty rests solely with the client, and defense counsel should not attempt to unduly influence that decision. Where defense counsel reasonably believes that acceptance of a plea offer is in the best interests of the client, defense counsel should advise the client of the benefits of this course of action.

C. Where the client verbally rejects a fully explained and detailed plea offer, and if appropriate, defense counsel may ask the client to sign a written rejection of plea offer statement.

94- 649 C.M.R. ch. 102, § 7