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Access to Justice and Technology

For Indigent Criminal


Defendants

By

Harry J. Jacobus III


Barriers for Criminal defendant
• Biased judge
• Unprepared defense counsel
• Inadequate resources
• Very difficult to prove ineffective counsel
• (1) objectively poor representation
• (2) outcome would have been different
“Do Justice”
• Prosecution has duty to do more than seek
conviction
• Duty comes from prosecution's vast
resources +
• Most criminal defendant’s are poor
• Case law
• Ethical rules
Prosecutorial Powers
• Evidence gathering/investigative powers
• More money
• Discretion charging suspects with crimes
• Pretrial incarceration which could lead to:
• Loss of employment
• Embarrassment
• Loss of reputation
• Financial costs
“With great power comes great
responsibility”
In addition

• Prosecution represents “the


people”
• Which includes the defendant
• Role has been described as “Quasi
Judicial”
Prosecutor Duty Pre-
trial
Charging Decisions
• Constitution: Minimal standard of
“probable cause”
• Defined as: “heightened suspicion”
• Dangers: political pressure
• Personal aspirations
• Conviction psychology
ABA Prosecution Standard

• Higher than constitutional standard


• “sufficient evidence to support
conviction”
• Discretionary rule
Possible solutions

• Make ABA rule mandatory


• Provide for additional sanctions:
• Fines
• Suspensions
• Judicial admonshment
Disclosure Rules
• Brady v. Maryland: must disclose
“favorable material evidence”
• Applicable regardless of good faith/bad
faith
• Must provide evidence even if not asked for
• Affirmative duty to seek out evidence from
detectives/police (no ignorance)
Model rule 3.8
• Broader than Brady: not limited to
“exculpatory evidence”
• Must disclose impeachment evidence
• However, rule is aspirational not
mandatory
• “Law and Order” example possible
Possible solution
• New rule made enforceable by court:
• (1) disclose any change in circumstances
not reasonably discoverable by defendant
and;
• (2) not require the prosecution to divulge
information that impeaches the defendant
More Barriers

• No civil remedy for Defendant


• No criminal consequences
• Even in cases where prosecutorial
misconduct found few prosecutors
actually punished
Prosecution Duty
During Trial
Inherent Conflict of interest
• Must the prosecutor step in when:
• Judge is unfairly biased
• Defense counsel is hostile towards
defendant
• Defense counsel is inadequate
• Should he “pull punches”
• Make motion to the court?
No clear rule here
• Must “zealously represent client” or put on
best case
• Must also ensure “justice is done”
• Putting innocent in jail conflicts with
“justice”
• Some Prosecutors will take advantage of
situation
• Others hold themselves to higher standard
Access to Technology
Types of Technology

• DNA Technology
• Ms. PowerPoint
• Sanction II
How technology helps
• Efficiency in pre-trial preparation
• Increased understanding of case by parties
• Efficiency in managing court time
• Efficiency in presentation of evidence
• Increased understanding by jury and judge
Access for indigent defendants:
• “Unfortunately, due to lack
of finances, or politics,
access to technology is
lacking for public defense
attorneys.”
Downside to Technology
• Can be expensive in the beginning:
Laptops, scanners, digital cameras,
projectors, CD burners, software etc.
• Requires certain degree of computer
proficiency
• More exposure to “Murphy's law”
DNA Technology
• Most important because it is
EVIDENCE
• Given great weight by Jury & Judge
• Almost Exclusive tool of
prosecution/private defense lawyers
• Technology very expensive +
• Need expert to present
evidence/prepare lawyer
DNA Cont.

• Cost estimated at $10,000 to


$30,000
• Difficult for defense to adequately
cross without his own expert
MS PowerPoint
• Ideal for “linear presentations” like:
• Opening statements
• Direct examinations
• Closing argument
Outlines
• Will never walk
again
• Cannot provide for
family
• Has lost health
insurance
• Is on public
assistance
• Needs costly
nursing assistance
Photo Illustrations

Shattered Pelvis
Broken Spine

“El Muerte” Stepped here


Continued

Severed Spinal Cord

Useless
Map Illustrations
9300 South Halsted
Tasty Good 9314

Jan 9,
9400 10:40 PM

N
9500

Alley
9600
Mack’s Restaurant 9614
S

9700
9720
Eddie’s Service Station

9800

9900 Thompson Home 9940


Room Illustrations
Tasty Good Diner
10:30PM 10:40
Sam Shirley Mike
Collins Thompson Miller

Counter
Stools

Door

Booths

South Halsted S N
Pros/Cons
• Pro: Easy to use
• Many Uses
• Pro: Inexpensive (approx $150)
• Pro: Good graphics
• Cons: Limited to Linear Presentations
Sanction II
• Non linear format
• Ideal for cross examination
• Better use of video depositions
• Easy viewing of Documents
• Cons: expense ($600.00)
• Cons: need training to use effectively
Effect of Unequal Resources
• “Mere” unequal resources not a due process
violation unless:
• Enflames Jury passion/prejudice
• Injects issue broader than guilt of D
• Makes unreasonable arguments in light of
evidence