94- 649 C.M.R. ch. 102, § 8

Current through 2024-50, December 11, 2024

Section 649-102-8 - GENERAL TRIAL PREPARATION

1. The decision to proceed to trial with or without a jury rests solely with the client. Defense counsel should discuss the relevant strategic considerations of this decision with the client.

2. Where appropriate, defense counsel should have the following materials available at the time of trial:

A. copies of all relevant documents filed in the case;

B. relevant documents prepared by investigators;

C. voir dire questions;

D. outline or draft of opening statement;

E. cross-examination plans for all possible prosecution witnesses;

F. direct examination plans for all prospective defense witnesses;

G. copies of defense subpoenas;

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

I. prior statements of all defense witnesses;

J. reports from defense experts;

K. a list of all defense exhibits, and the witnesses through whom they will be introduced;

L. originals and copies of all documentary exhibits;

M. proposed jury instructions with supporting case citations;

N. copies of all relevant statutes and cases;

O. outline or draft of closing argument.

3. Defense 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.

4. Defense 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 client) and, where appropriate, defense counsel should prepare motions and memoranda for such advance rulings.

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

6. Where appropriate, defense counsel should advise the client as to suitable courtroom dress and demeanor. If the client is incarcerated, defense counsel should be alert to the possible prejudicial effects of the client appearing before the jury in jail or other inappropriate clothing.

7. Defense counsel should plan with the client the most convenient system for conferring throughout the trial. Where necessary, defense counsel should seek a court order to have the client available for conferences.

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

9. Defense counsel should consider all steps necessary to complete investigation, discovery, and research in advance of trial, such that defense counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of:

A. summonsing all potentially helpful witnesses, utilizing ex parte procedures if advisable.

B. summonsing all potentially helpful physical or documentary evidence;

C. arranging for defense experts to consult and/or testify on any evidentiary issues that are potentially helpful; e.g., testing of physical evidence, opinion testimony, etc.

D. obtaining and reading transcripts and/or prior proceedings in the case or related proceedings;

E. obtaining photographs or preparing charts, maps, diagrams or other visual aids of all scenes, persons, objects or information which may aid the fact finder in understanding the defense case.

94- 649 C.M.R. ch. 102, § 8