Defense Attorneys Research Articles

Czy poligraf może być narzędziem wspierającym obrońców w procesie karnym?

Can the polygraph be a resource to aid defense attorneys in the criminal process? Article 2(1)(1) of the Polish Code of Criminal Procedure indicates that its provisions intend to shape the criminal process so that the perpetrator of a crime is detected and held criminally responsible, while a person who has not been proven guilty is not. For this to happen, defense counsel must be able to use the tools that make it feasible to realise the constitutional right to defense by effectively rebutting the accusation. Polygraph tests, which have been present in the Polish criminal procedure for several decades, can successfully serve such a purpose. Their results in the majority of cases constitute exculpatory evidence for the persons examined. Unfortunately, they are still wrongly perceived as a method for detecting lies and providing proof of guilt.

On the ‘Double Protection’ Issues

Based on regulatory sources, materials from the judicial and disciplinary practice of regional bar chambers, and bar instruments, the paper analyzes certain aspects of double protection, when a court appointed attorney participates in the case along with an arranged lawyer. In particular, the paper studies issues on the priority of legally protected values when deciding on the admissibility of ‘double protection’; on the degree of completeness and consistency of legal regulation of relevant legal relations in their legal and professional ethical context; on the validity of expanding the legal grounds for the participation of a court-appointed attorney; on the effect of the rule of Part 3 of Art. 50 of the Code of Criminal Procedure of the Russian Federation on the failure of a defense lawyer to appear within 5 days in relation to a court-appointed lawyer; on the possibility of challenging the courtappointed attorney due to their «low qualifications.» Given the incompleteness and inconsistency of regulation of this sphere, which is significant both legally and professionally and ethically, and taking into account the different tasks in the implementation of the functions of criminal proceedings by the bodies of inquiry and investigation, as well as the state prosecution — on the one hand, and the defense — on the other, it is important to find there is a certain regulatory balance in this area. It should also be taken into account that the institution of «double protection» in one way or another touches on the issue of conflict of public and private interests. According to the author, it is necessary to eliminate the incompleteness and inconsistency of the normative regulation of the institution of «double protection», develop unified approaches to the implementation of this institution by lawyers, ensure consistent corporate disciplinary practice in matters of bringing a lawyer to disciplinary liability, promote the unity of law enforcement practice in this matter by the bodies of inquiry and investigation and courts.

Bridging the literacy gap for surgical consents: an AI-human expert collaborative approach

Despite the importance of informed consent in healthcare, the readability and specificity of consent forms often impede patients’ comprehension. This study investigates the use of GPT-4 to simplify surgical consent forms and introduces an AI-human expert collaborative approach to validate content appropriateness. Consent forms from multiple institutions were assessed for readability and simplified using GPT-4, with pre- and post-simplification readability metrics compared using nonparametric tests. Independent reviews by medical authors and a malpractice defense attorney were conducted. Finally, GPT-4’s potential for generating de novo procedure-specific consent forms was assessed, with forms evaluated using a validated 8-item rubric and expert subspecialty surgeon review. Analysis of 15 academic medical centers’ consent forms revealed significant reductions in average reading time, word rarity, and passive sentence frequency (all P < 0.05) following GPT-4-faciliated simplification. Readability improved from an average college freshman to an 8th-grade level (P = 0.004), matching the average American’s reading level. Medical and legal sufficiency consistency was confirmed. GPT-4 generated procedure-specific consent forms for five varied surgical procedures at an average 6th-grade reading level. These forms received perfect scores on a standardized consent form rubric and withstood scrutiny upon expert subspeciality surgeon review. This study demonstrates the first AI-human expert collaboration to enhance surgical consent forms, significantly improving readability without sacrificing clinical detail. Our framework could be extended to other patient communication materials, emphasizing clear communication and mitigating disparities related to health literacy barriers.

Exploring the perceived importance of neuroscientific research on addictions in legal contexts: a survey of US criminal justice students and German legal professionals

PurposeNeuroscientific research on addictions has prompted a paradigm shift from a moral to a medical understanding – with substantial implications for legal professionals’ interactions with and decision-making surrounding individuals with addiction. This study complements prior work on US defense attorney’s understandings of addiction by investigating two further perspectives: the potential “next generation” of legal professionals in the USA (criminal justice undergraduates) and legal professionals from another system (Germany). This paper aims to assess their views on the brain disease model of addiction, dominance and relevance of this model, the responsibility of affected persons and preferred sources of information.Design/methodology/approachViews of 74 US criminal justice undergraduate students and 74 German legal professionals were assessed using Likert scales and open-ended questions in an online survey.FindingsNeuroscientific research findings on addictions and views that addiction is a brain disease were rated as significantly more relevant by American students to their potential future work than by German legal professionals. However, a majority of both samples agreed that addiction is a brain disease and that those affected are responsible for their condition and actions. Sources of information most frequently used by both groups were publications in legal academic journals.Practical implicationsIn the USA, information for legal professionals needs to be expanded and integrated into the education of its “next generation,” while in Germany it needs to be developed and promoted. Legal academic journals appear to play a primary role in the transfer of research on addiction into legal practice.Originality/valueThis study complements prior work on US defense attorney’s understandings of addiction by investigating two further perspectives.

Digital vulnerability: People-in-prison, videoconferencing and the digital criminal justice system

Since the COVID-19 pandemic forced prisons into extended lockdowns, people-in-prison have been increasingly reliant on remote access technologies such as videoconferencing to interact with the outside world from their carceral context. During the pandemic, both corrective services and criminal courts found that these communication technologies could adequately facilitate court appearances, legal conferencing, health services and visitations. Now, despite the lessening panic regarding COVID-19, there are suggestions that authorities are keen to continue, if not increase, the usage of video links meaning that people-in-prison will experience decreasing human contact. The argument is that COVID-19 “successes” are being used as an excuse to cement remote hearings and visits. This points to a future of absolute confinement uninterrupted by “inconvenient” physical court attendance or human visitors. This article will focus on the “digital vulnerability” of people-in-prison, that is, the intersection between the vulnerabilities of incarcerated people with the use of remote communication technologies such as videoconferencing or video links, and the digital inequalities that may be provoked or solved. The article will draw on qualitative research – fieldwork interviews with judicial officers, lawyers and associated criminal justice professionals – that reveal critical perspectives on the impacts of digital transformation on vulnerable people-in-prison. For instance, when asked about the vulnerabilities of people-in-prison, one defence lawyer (DL1) expressed the view that “no one cares about defendants” or their vulnerabilities, nor their abilities to engage with video links, comprehend or play any role in their own remote legal matters. We analyse our source materials through a framework of vulnerability theory and the developing concept of digital vulnerability. In this way, we seek to offer new knowledge regarding prison digital transformation, specifically the relationship between digital technologies in correctional environments and the vulnerable incarcerated population.

“Family Trouble”: The 1975 Killing of Denise Hawkins and the Legacy of Deadly Force in the Rochester, NY Police Department

This paper examines the lineages of police violence, family trauma, and police reform through a case study of the Rochester police killing of Denise Hawkins in 1975. Michael Leach, a 22-year-old, white police officer, responded to a “family trouble” call involving a domestic dispute between Hawkins and her husband. When the 18-year-old, 100-pound Black woman emerged from the apartment, she held a kitchen knife. Within five seconds, Leach had shot and killed her, later claiming she endangered his life. Though Hawkins’ name is included in lists of Black women killed by police, little is known about her life and legacy. Using newspapers, police records, and oral history, we examine activists’ attempts to scale the call for justice for Denise Hawkins to the national level, the police department’s defense of Leach as the true victim in the incident, and the city leaders’ compromised efforts to establish a civilian oversight of police. Within the context of Rochester’s robust history of resistance to police violence, we argue that the reform efforts of the late 1970s ultimately failed to redress the police use of deadly force. Furthermore, when Michael Leach killed again in 2012—this time shooting his own son, whom he mistook for an intruder—his defense attorney successfully depicted Leach as the sympathetic figure. In shifting the focus to Denise Hawkins, this work contributes to the Black feminist call to memorialize Black women killed by police and suggests that the policies that protect the officers who use deadly force cause widespread, intergenerational harm to officers and their victims.

Elaboration and Code Glossing in Prosecution and Defense Attorneys’ Opening Statements and Closing Arguments

This paper provides a metadiscourse analysis of how American prosecution and defense attorneys utilize code glosses to facilitate the courtroom audience’s comprehension of what they have said. Drawing upon a corpus of 24 opening statements and closing arguments in six high-profile American trials, we examine the methods employed by the attorneys to effectively manage their speeches in order to convey information or illustrate points while constructing their arguments for the courtroom audience. Regardless of the somehow low frequency of code glosses, as revealed by the findings, they still have been found to play a vital role in the legal discourse of the opening statements and the closing arguments, serving as a complex and crucial rhetorical function.

The Adversarial Lawyer and the Client's Best Interest: Failures With Pre-Charge Engagement

The role of the defence lawyer is one of a zealous advocate, acting in the best interests of their client. However, a substantial body of evidence suggests that lawyers often operate as components within a procedural machinery that primarily processes the guilt or innocence of defendants. This phenomenon has led to the gradual erosion of the concept of zealous advocacy and adversarialism. Over the last 30 years, the adversarial process in England and Wales has experienced a steady transformation through incremental adjustments to the criminal justice system. The advent of the Criminal Procedure Rules 2003 (CrimPR) marked a notable shift in the handling of criminal cases, ushering in a culture of cooperation where both prosecution and defense cooperate with the shared objective of upholding the CrimPR's Overriding Objective: to deal with cases justly. This transformation has steered the criminal justice process away from its adversarial origins and toward a more managerial and process-driven framework. An additional manifestation of this managerial culture emerged with the introduction of Pre-Charge Engagement (PCE) in 2021. PCE sought to divert cases trial by initiating a dialogue between defense lawyers and the police. If effectively employed, PCE could help reduce the backlog of cases in the criminal courts and expedite resolutions for complainants, suspects, and witnesses. However, it is concerning that PCE is underutilised. This article contends that defense lawyers, by not fully embracing PCE, may not be acting in the best interests of their clients and certainly deviate from the conventional conception of a defense lawyer's role.

Other-Repetition to Convey and Conceal the Stance of Institutional Participants in Chinese Criminal Trials

Based on the examination of 49 Chinese criminal trials transcribed from the audio-visual recordings on the ‘China Court Trial Online’ website (https://tingshen.court.gov.cn/), the institutional participants–prosecutors, defence lawyers, and judges–are found to frequently repeat defendants’ responses (‘other-repetition’), after a question–answer adjacency pair. Other-repetition has been described as a resource for showing participation and familiarity (Tannen 2007), initiating repair and registering receipt (Schegloff 1997), and displaying understanding and emotional stance (Svennevig 2004). However, other-repetition in trial discourse has not been thoroughly researched. Therefore, this article aims to further examine this salient institutional linguistic feature in order to explore stance construction as a third turn. It is common to associate certain prosodic features of a repetition with the stance of the speaker. However, prosody may not be a reliable cue for stance interpretation in Chinese courtrooms, as institutional participants might conceal their stance during a repetition. Though they are more explicit in displaying their stance with turn-initial repeats, the distinction between the prosody of repeats for different functions is not categorical. It is found that defendants are sensitive to the lexicogrammar and multimodal cues for stance interpretation.

Specificity of special knowledge use by the defense attorney in criminal proceedings

This paper outlines the study of special knowledge use by defense attorney in criminal proceedings and its specificity. It is noted that defense effectiveness is directly determined by correct tactical decisions made within the criminal proceedings, namely structuring the defense algorithm to achieve the desired result. Selection of such tactical solutions depends, in particular, on the level of defender’s special knowledge or one’s awareness regarding its application by other authorized parties.&#x0D; The aim of this paper is to determine the specificity of special knowledge use in criminal proceedings by the defense attorney.&#x0D; Paper provides a linguistic and academic interpretation of the «special knowledge» concept. Authors note that it is necessary to take into account the purpose of its use (that is, not only for investigation, solving or prevention of criminal offenses, but also for the protection of rights, freedoms and legitimate interests of the suspect, accused and other subjects under Article 45 (1) of the Criminal Procedure Code of Ukraine) while defining the content of the specified concept. Attention is also paid to forms of special knowledge application by the defense attorney in criminal proceedings. It is emphasized that one may support the investigative process and justification of defense position based on the opinion of a specialist or expert with such justification grounded for the prosecution party.&#x0D; Author concludes that specificity of special knowledge use by the defense attorney in criminal proceedings stipulates: ability to directly apply it (independently), but with limits in comparison to pre-trial investigation bodies, and indirectly (involve a specialist or forensic expert (or request their opinions) via an investigator, inquirer, prosecutor, investigating judge, court to); use of knowledge backed by well-known constitutional principle «everything is allowed unless expressly prohibited by law» - authorized persons of pre-trial investigation bodies, though, use it only in accordance with a specific clause from a legal act of a different hierarchical level (based on legal force).

Availability of the seat belt defense: Implications for auto liability insurance

AbstractA “seat belt defense” allows a defendant in a third‐party auto liability event to present evidence of seat belt nonuse to reduce a plaintiff's recovery. When successfully applied, the defense has a direct effect on reducing liability payouts by insurers for accidents. Our analysis reveals that seat belt defense laws are associated with a 10% reduction in auto claims costs, which equates to a reduction in loss costs of approximately $14 per insured vehicle. We find little evidence that the defense reduces accident frequency and no evidence that the defense affects seat belt usage. The lack of a deterrent effect on driving behavior suggests that the availability of the defense is not salient to drivers. The reduction in loss costs supports the notion that defense lawyers are aware of the defense and make use of it. The resulting effect of lowering insurance payouts may alleviate increasing auto insurance costs.

New Research on Veterans Treatment Courts: An Overview of the Community Participatory Research on Veterans in Specialized Programming Project

ABSTRACT Justice-involved veterans return to civilian life with a variety of mental and physical health challenges that often go untreated and increase their risk for self-harm and involvement in the criminal-legal system. Veterans Treatment Courts (VTC) were created to respond to the unique problems of justice-involved veterans by attempting to coordinate services and support with the U.S. Department of Veterans Affairs (VA), local treatment providers, and the VTC. Our research has two distinct phases. In Phase 1, we conducted qualitative interviews with VTC team members in twenty (20) VTCs from each USA region; in each VTC, we gained the perspectives of team members – judges, prosecutors, defense attorneys, VJOs, VTC program coordinators, mentors, probation officers, and treatment providers – on the operation of VTCs, with a focus on how to improve service provision for justice-involved veterans. A total of 145 interviews were conducted. We begin by describing the unique problems and treatment needs of justice-involved veterans, and briefly summarize the findings from previous research on the implementation and impact of VTCs. We then present our research study protocol and highlight findings from our phase 1 qualitative interviews with VTC team members. In addition, we describe phase 2 of our project, which will include focus groups with VTC graduates, and quantitative analyses of the service provision networks of three VTCs.

Amongst agaish: the criminalization of Eritrean migrants’ communities of care

ABSTRACT In the Processo Agaish trial, Italian prosecutors accused Eritrean refugees of human trafficking and exploiting their clients’ desires to move further North. Pointing out the mistranslation of the Tigrinya word agaish was part of the defense's strategy to show that the purported victims in this case were not clients, but guests, often family members of those accused who hosted them, not for money but for something akin to hospitality. Defense lawyers linked this case with activist efforts to decry instances where solidarity with asylum seekers was criminalized as aiding and abetting human trafficking in order to expose this criminalization of solidarity as the latest politically motivated tactic in migrant deterrence. This article details the culturally specific forms of caretaking amongst Eritreans in order to consider, from an Eritrean perspective, the relational aspects of care and rethink the scholarship on the ‘criminalization of solidarity’ that limits itself to understanding solidarity in terms of politics. This article further argues that relational ties and hospitality practices amongst agaish become fragmented in the Eritrean diaspora. This work is based on ethnographic fieldwork with the Eritrean refugee community living primarily in Rome from 2016 to 2018 and access to case files in a human-trafficking investigation.

Приобретение и прекращение статуса защитника: сравнительный анализ Устава уголовного судопроизводства 1864 года и современного законодательства

The paper covers the issues of acquisition and loss of the status of a defense lawyer in a criminal case in the period of the Statute of Criminal Proceedings of 1864 (the Statute) and in the current Criminal Procedure Code of the Russian Federation. Since the Statute was and remains an outstanding monument of domestic criminal procedure legislation, an appeal to its provisions in view of their comparison with the current legislation seems to have high theoretical significance and relevance. Moreover, the analysis of the actual legislative regulation of certain provisions of the Statute is significantly expanded in the paper by referring to the law enforcement practice of the Governing Senate, which both acted as a mechanism for the formation of uniform judicial practice and often filled in the gaps of legislative regulation. The paper presents an analysis of the grounds and conditions for the acquisition and loss by a defense lawyer of his procedural status in a historical and comparative aspect in order to determine the possibilities of improving this procedural institution in modern legislation. Within this goal, in general, a tendency has been identified towards a more detailed and elaborated procedural regulation of the acquisition and loss by a defense lawyer of his status in modern criminal procedural legislation in comparison with the provisions of the Statute. At the same time, there are examples of the opposite – the Statute regulated the possibility of the defense lawyer’s participation in a case in a conflicts defense in a much more flexible and balanced manner. In contrast to the current legislation, the Statute properly regulated the institution of replacing a defense lawyer at the client’s initiative. The Statute allowed for the possibility of a defense lawyer’s refusal to undertake the defense if there were compelling reasons, which is strenuously not allowed by current legislation, contrary to the logic of properly ensuring the right to defense. These and other aspects demonstrate the directions for improving the modern procedural regulation of the acquisition and loss of the status of a defense lawyer as suggested by the provisions of the Statute.

Body-worn cameras and court proceedings: A qualitative study of police officers’ expectations

Abstract Body-worn cameras (BWCs) record interactions between members of the public and law enforcement, with expected legal benefits. This study examines police officers’ perceptions of BWC usage in court through individual interviews and focus groups with 78 officers. Most of the participants were involved in a 6-month BWC pilot program, which was only the third BWC implementation in the Canadian province of Quebec. Police officers are largely optimistic about the use of BWCs in court and expect their footage to serve as visual evidence, to replace portions of written reports, and corroborate their testimony. However, they worry that BWC footage could be used by defense lawyers to challenge report discrepancies, leading to substantial impacts on legal proceedings. The BWC pilot program did not exacerbate their apprehensions about the technology’s potential limitations. The central role of police officers in the use of BWC footage as evidence is highlighted.

Criminal Procedural Protection of Human Rights in Conditions of an Armed Conflict

The purpose of the research is to disclose criminal procedural protection (defense) of human rights in conditions of an armed conflict. Interpretation of Article 45 of the Criminal Procedure Code of Ukraine in terms of limiting the constitutional right to choose a defense lawyer has been analyzed. A comparative analysis of current and European legislation in the sphere of access to legal aid is presented. Decisions of the ECtHR in the cases “Brusco v. France”, “Talat Tanci v. Turkey”, “Katz and others v. Ukraine” have been researched. The main issues related to participation of the defense party in criminal proceedings are highlighted. It has been theoretically established that an efficient implementation of the right to defense in criminal proceedings requires the application of the ECtHR practice, which serves as an additional effective mechanism for effective defense of human rights and representation of human interests in criminal proceedings. Scientific approaches to the introduction of a new system of legal aid and defense have been researched. A comparative analysis of current and European legislation in the sphere of access to legal aid is presented. Decisions of the ECtHR in the cases “Brusco v. France”, “Talat Tanci v. Turkey”, “Katz and others v. Ukraine” have been researched. The main issues related to participation of the defense party in criminal proceedings are highlighted. It has been theoretically established that an efficient implementation of the right to defense in criminal proceedings requires the application of the ECtHR practice, which serves as an additional effective mechanism for effective defense of human rights and representation of human interests in criminal proceedings. A conclusion has been drawn on the need to improve Ukrainian legislation in terms of determining the legal status of a defense attorney in criminal proceedings and bringing Ukrainian legislation closer to generally recognized international standards.

Problems of Reimbursement of Expenses for the Defence Lawyer’s Representation in the Case of a Judgment of Acquitta l

Summary In this article, the authors analyse problems of reimbursement of expenses for the defence lawyer’s representation in the case of a judgement of acquittal. The identification of problems is based on the analysis of EU law, ECtHR jurisprudence and the legal regulation of some European countries. During the research, it was identified that the establishment of the aforementioned right is not mandatory according to the EU law and is left to the discretion of the Member States. It was also found that realization of this right of the acquitted person often balances on the edge of the conflict between individual’s and public interest. Although the right of the acquitted person to reimbursement of the expenses for the defence lawyer’s representation is provided in all States analysed in the Article, the application of this right is quite different. In some of the analysed States, the aforementioned right is guaranteed not only to the acquitted person but also to the one in respect of who the criminal proceedings are terminated or he is partially acquitted. Taking into account the identified lack of the legal regulation in Lithuania and adopting good practices of other European countries, proposals are presented in the Article on how the legal regulation of Lithuania could be improved. According to the authors, the realization of these proposals would allow to achieve an optimal balance between the individual and public interests.

The Impact of the Defense Attorney on Plea Decision-Making: An Experimental Analysis

Most criminal court cases are resolved through a plea, yet the plea decision-making process remains largely unexplored in comparison to other phases of case processing. With defendants reliant on their defense attorney during the plea process, it stands to reason that the characteristics of the defense attorney would impact plea decision-making. To assess this possibility, we administered an experimental vignette to a national sample, manipulating defense attorney type, race, sex, experience, familiarity with other courtroom workgroup members, and empathy toward the defendant. We found that respondents were more likely to accept a plea offer if the defense attorney was experienced and empathic. When the defense attorney was private, experienced, familiar, or empathic, respondents rated their defense attorney as more qualified, which then influenced their acceptance of the plea offer. Uncertainty of the outcome, consequences of a plea, and reasonableness of the plea offer were the common motivators in decision-making.

Justice must be seen to be done: a multimodal attitude analysis of attorneys’ closing arguments

Abstract Multimodal discourse analysis offers a novel lens for the study of legal discourse. Within the closing arguments of a trial, prosecution and defense attorneys utilize various multimodal resources to present evidence, articulate opinions, and adopt stances to achieve their communicative goals. This research focuses on the closing arguments in the criminal trial concerning the death of George Floyd to analyze the multimodal representation of the closing arguments delivered by both prosecution and defense attorneys. It employs the analytical framework of the attitude system and paralinguistic typology proposed by Martin and colleagues, and uses the UAM Corpus Tool and Praat to qualitatively annotate and quantify the linguistic and paralinguistic information. The findings reveal that these attorneys employ different multimodal resources, including language and paralanguage, to convey their attitudes towards the case’s participants. This leads to the construction of competing narratives, shedding light on how justice is seen to be done.

Суд с участием присяжных в оценках ученых-юристов: различия в профессиональном опыте

The paper presents the differences in the legal scholars’ attitudes on the acceptability of jury trial in Russian legal system. Based on qualitative observations in district courts and expert conversations with law enforcement officers and judges, a sceptical attitude towards jury trials is revealed. This scepticism was tested in a questionnaire survey of legal scholars in 2022 (3,766 Russian authors registered in the Russian Science Citation Index were included). Statistically significant differences were found in the opinions on jury trial among those legal scholars who have experience in law enforcement and the court system (30 and 27%, respectively, have a negative attitude towards this institution) and as defence lawyers (14% of negative opinions). Among those who continue their professional activities in these status, the differences are even higher. With former law enforcement officials representing a third of the legal academy and legal education in Russia, and former defence lawyers representing less than a tenth of it, the scepticism about jury trials is expected to spread further.