Louisiana Administrative Code › Title 22 - CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT › Part XV - Public Defender Board › Chapter 19 - Performance Standards for Criminal Defense Representation in Indigent Capital Cases › Section XV-1915 - Performance Standard 7: Trial

Current through Register Vol. 50, No. 6, June 20, 2024
A.
				Counsels Duty of Trial Preparation
1.
				Throughout preparation and trial, counsel should consider the defense case
				theory and ensure that counsels decisions and actions are consistent with that
				theory. Where counsels decisions or actions are inconsistent with the theory,
				counsel should assess and understand why this is the case and then either
				change the conduct or change the theory to accommodate the new
				approach.
2. Counsel should
				complete the investigation, discovery, and research in advance of trial, such
				that counsel is confident that the most viable defense theory has been fully
				developed, pursued, and refined. Ordinarily, this process should be
				sufficiently advanced at least 180 days before trial to ensure that issues
				related to funding, expert witnesses, witness availability, securing witness
				attendance and accommodation, witness preparation and other trial preparation
				can proceed in an orderly and well planned fashion.
3. Counsel should not forgo investigation and
				preparation of a defense on the basis that the prosecution case appears weak or
				counsel believes that no penalty phase will be required.
4. Preparation for trial should include:
a. causing subpoenas to be issued for all
				potentially helpful witnesses, and all potentially helpful physical or
				documentary evidence:
i. counsel should ensure
				that all subpoenaed witnesses are aware of the correct date and time to appear
				in court, the action they should take when they appear in response to the
				subpoena and how to contact counsel if necessary;
ii. counsel should consider utilizing ex
				parte procedures for the subpoena of persons, documents or things when
				available;
iii. counsel should
				follow up on all subpoenas and follow procedures for informing the court of
				non-compliance and seeking enforcement;
iv. counsel may refrain from issuing
				subpoenas for particular witnesses based on strong tactical considerations and
				in the awareness of the waiver of the defendants rights to compulsory process
				that this may entail;
b.
				arranging for defense experts to consult and/or testify on evidentiary issues
				that are potentially helpful (e.g., testing of physical evidence, opinion
				testimony, etc.):
i. adequate arrangements for
				the funding, scheduling and, where necessary, transport and accommodation of
				expert witnesses should be made;
ii. counsel should prepare with the experts
				and should be fully aware of the experts opinions on all relevant matters,
				including relevant prior testimony, before deciding whether or not to present
				them at trial;
iii. counsel should
				determine the extent to which evidence to be addressed by an expert witness may
				be presented through lay witnesses;
c. ensuring that counsel has obtained, read
				and incorporated into the defense theory all discovery, results of defense
				investigation, transcripts from prior or related proceedings and notices,
				motions and rulings in the case;
d.
				obtaining photographs and preparing charts, maps, diagrams, or other visual
				aids of all scenes, persons, objects, or information which may assist the fact
				finder in understanding the defense;
e. ensuring that the facilities at the
				courthouse will be adequate to meet the needs of the trial and the defense
				team.
5. Counsel should
				have available at the time of trial all material relevant to both the guilt and
				penalty phases that may be necessary or of assistance at trial, including:
a. copies of all relevant documents filed in
				the case;
b. relevant documents
				prepared or obtained by investigators;
c.
voir dire
questions,
				topics or plans;
d. outline or
				draft of opening statements for both guilt and penalty phases;
e. cross-examination plans for all possible
				prosecution witnesses;
f. direct
				examination plans for all prospective defense witnesses;
g. copies of defense subpoenas and proof of
				service;
h. prior statements and
				testimony of all prosecution witnesses (e.g., transcripts, police reports) and
				counsel should have prepared transcripts of any audio or video taped witness
				statements. Counsel should also be prepared to prove the prior statements if
				required;
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
				(as well as a contingency plan for having necessary exhibits admitted if, for
				example, a witness fails to appear);
l. exhibits, including originals and copies
				of all documentary exhibits;
m.
				demonstrative materials, charts, overheads, computer presentations or other
				similar materials intended for use at trial;
n. proposed jury instructions with supporting
				case citations, and where appropriate, consider and list the evidence necessary
				to support the defense requests for jury instructions; and
o. relevant statutes and cases.
6. Counsel should be fully
				informed as to the rules of evidence, court rules, 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. During case
				preparation and throughout trial, counsel should identify potential legal
				issues and the corresponding objections or motions. Counsel should consider
				when and how to raise those objections or motions. Counsel should also consider
				how best to respond to objections or motions that could be raised by the
				prosecution.
7. Counsel should
				anticipate state objections and possible adverse court rulings that may impact
				the defense case theory, be prepared to address any such issues and have
				contingency plans should counsels efforts be unsuccessful. Counsel should
				consider in advance of trial and prepare for the possibility of any emergency
				writ applications which may be filed by either party as well as making
				arrangements to ensure that the defense team is able to efficiently and
				effectively litigate any unanticipated emergency writ applications.
8. 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 defendant, admissibility of particular items
				of evidence) and, where appropriate, counsel should prepare motions and
				memoranda for such advance rulings.
9. Counsel should advise the client as to
				suitable courtroom dress and demeanor. Counsel should ensure that the client
				has appropriate clothing and the court personnel follow appropriate procedures
				so as not to reveal to jurors that the client is incarcerated. Counsel should
				ensure that the client is not seen by the jury in any form of physical
				restraint. Counsel should ensure that steps are taken to avoid prejudice
				arising from any security measures in the court and object to the use of both
				visible restraints on the client and any concealed restraints that adversely
				impact the client physically or psychologically or impair the clients ability
				to consult freely with counsel.
10.
				Counsel should plan with the defense team the most convenient system for
				conferring throughout the trial. Where necessary, counsel should seek a court
				order to have the client available for conferences and all required court
				appearances.
11. Counsel should
				plan with the defense team for contingencies arising from the absence or
				unavailability of any team member and the procedure for accessing additional
				resources for the team whenever required. Lead counsel should ensure that
				additional resources, including legal, investigative and support personnel, are
				available and utilized as appropriate immediately prior to and during trial.
				Lead counsel should ensure that all members of the defense team are fully aware
				of their role and responsibilities at trial.
12. Throughout preparation and trial, counsel
				should consider the potential effects that particular actions may have upon the
				mitigation presentation and any verdict at the penalty phase if there is a
				finding of guilt.
13. Counsel shall
				take necessary steps to ensure full, official recordation of all aspects of the
				court proceeding including motions, bench conferences in chambers or at
				sidebar, opening statements, closing arguments, and jury instructions. If
				something transpires during the trial that is relevant and significant and has
				not been made a part of the record (for instance, communications out of the
				presence of the court-reporter or non-verbal conduct), counsel should ensure
				that the record reflects what occurred.
14. Counsel should make a written request for
				a continuance if he or she determines that the defense is not adequately
				prepared for trial or otherwise not able to present a high quality defense on
				the scheduled trial date. Counsel should be prepared to proffer a full
				justification for the continuance, explaining the incomplete preparation,
				unavailable witness, prejudice from late disclosure by the state or other
				reason for the continuance. Counsel should be prepared to demonstrate
				reasonable diligence in preparing for trial but should request any necessary
				continuance even where counsel has not shown reasonable diligence. Counsel
				should avoid prematurely exposing the defense case theory by seeking to make
				any proffer of the reasons for the continuance on an ex parte and under seal
				basis.
15. Counsel should take all
				necessary steps to secure conditions of trial that allow for the provision of
				high quality representation, that allow the client to participate meaningfully
				in his own defense and that make adequate accommodations for any special needs
				the client may have. Such conditions may include the hours of court, the number
				and length of breaks, particular technological resources, the use of
				interpreters or other assistants to the clients understanding and
				communication, the pace of questioning and argument, medical assistance for the
				client and adequate space in the courtroom for the clients family and
				supporters.
16. Counsel should
				attempt to present as much mitigation evidence as possible during the
				guilt-innocence phase.