Access to Justice and Technology
For Indigent Criminal
Defendants
By
Harry J. Jacobus III
Barriers for Criminal defendant
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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
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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 Pretrial
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
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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
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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
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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
“El Muerte” Stepped here
Broken Spine
Continued
Severed Spinal Cord
Useless
Map Illustrations
9300
Tasty Good
9314
South Halsted
Jan 9,
10:40 PM
9400
N
9500
Alley
9600
Mack’s Restaurant
9614
Eddie’s Service Station
9720
Thompson Home
9940
9700
9800
9900
S
Room Illustrations
Tasty Good Diner
10:30PM
Sam
Collins
10:40
Mike
Miller
Shirley
Thompson
Counter
Stools
Door
Booths
South Halsted
S
N
Pros/Cons
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Pro: Easy to use
Many Uses
Pro: Inexpensive (approx $150)
Pro: Good graphics
Cons: Limited to Linear Presentations
Sanction II
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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