Colorado Criminal Defense Attorney’s Obligation To Investigate Their Client’s Case
Intorduction – Under certain ethical rules and standards – criminal defense lawyers are required – to attain minimal competency – to fully investigate the facts and evidence in the case they are defending. These standards are set out in Colorado case law – but also in the ABA – the American Bar Associations – Defense Function Rules. They are reprinted on this page.
ABA STANDARDS INVESTIGATION AND PREPARATION
Standard 4- 4.1 – The Duty to Investigate
(a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.
The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities.
The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
(b) Defense counsel should not seek to acquire possession of physical evidence personally or through use of an investigator where defense counsel’s sole purpose is to obstruct access to such evidence.
Standard 4- 4.2 An Illegal Investigation
Defense counsel should not knowingly use illegal means to obtain evidence or information or to employ, instruct, or encourage others to do so.
Standard 4- 4.3 Relations With Prospective Witnesses
(a) Defense counsel, in representing an accused, should not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) Defense counsel should not compensate a witness, other than an expert, for giving testimony, but it is not improper to reimburse a witness for the reasonable expenses of attendance upon court, including transportation and loss of income, attendance for depositions pursuant to statute or court rule, or attendance for pretrial interviews, provided there is no attempt to conceal the fact of reimbursement.
(c) It is not necessary for defense counsel or defense counsel’s investigator, in interviewing a prospective witness, to caution the witness concerning possible self-incrimination and the need for counsel.
(d) Defense counsel should not discourage or obstruct communication between prospective witnesses and the prosecutor. It is unprofessional conduct to advise any person other than a client, or cause such person to be advised, to decline to give to the prosecutor or defense counsel for codefendants information which such person has a right to give.
(e) Unless defense counsel is prepared to forgo impeachment of a witness by counsel’s own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, defense counsel should avoid interviewing a prospective witness except in the presence of a third person.
Standard 4- 4.4 Relations With Expert Witnesses
(a) 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.
(b) 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
(a) 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).
(b) 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.
(c) 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;
(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.
(d) 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.
(e) 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.
THE CONTROL AND DIRECTION OF LITIGATION
Standard 4- 5.1 Advising the Accused
(a) 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.
(b) 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.
(c) 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
(a) 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:
(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive jury trial;
(iv) whether to testify in his or her own behalf; and
(v) whether to appeal.
(b) 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.
(c) 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.