1. Criminal Defense Lawyers and Judges in the US Public-Private Partnership for Justice Reform in Afghanistan February 25, 2010 David M. Siegel dsiegel@nesl.edu / 1 (617) 422-7270

2. Overview Lawyer’s Duties Lawyer’s Duties Zealous Representation Zealous Representation Candor to Tribunal Candor to Tribunal Preserve Court’s Impartiality and Decorum Preserve Court’s Impartiality and Decorum Judge’s Duties Judge’s Duties Promote integrity and avoid impropriety Promote integrity and avoid impropriety Be impartial, competent and diligent Be impartial, competent and diligent

3. Defense Lawyer’s Duties Defense Lawyer Client Duty to Zealously Represent Client Court Duty of Candor to Tribunal Duty to Preserve Impartiality and Decorum of Tribunal

4. Duty of Candor to Tribunal Lawyer may not knowingly Lawyer may not knowingly make false statement of law, fact or evidence to court, or make false statement of law, fact or evidence to court, or fail to correct a false statement of law, facts or evidence. fail to correct a false statement of law, facts or evidence. Lawyer must know or have reasonable basis to believe facts, but need not volunteer harmful evidence. Lawyer must know or have reasonable basis to believe facts, but need not volunteer harmful evidence.

5. Duty of Candor: about Law Judge asks lawyer: “Does law limit sentence to 2 years?” Law actually allows 4 year sentence. Must lawyer correct judge? Judge asks lawyer: “Does law limit sentence to 2 years?” Law actually allows 4 year sentence. Must lawyer correct judge? Judge tells lawyer: “I will sentence defendant to longest possible sentence of 2 years.” Law actually allows 4 year sentence. Must lawyer correct judge? Judge tells lawyer: “I will sentence defendant to longest possible sentence of 2 years.” Law actually allows 4 year sentence. Must lawyer correct judge? Judge tells lawyer: “I will sentence defendant to longest possible sentence. Isn’t that 2 years?” Law actually allows 4 year sentence. Must lawyer correct judge? Judge tells lawyer: “I will sentence defendant to longest possible sentence. Isn’t that 2 years?” Law actually allows 4 year sentence. Must lawyer correct judge?

6. Duty to Preserve Court’s Impartiality and Decorum Lawyers must Lawyers must Not seek improper influence on court, and Not seek improper influence on court, and Avoid ex parte communications. Avoid ex parte communications. No public statements likely to prejudice proceeding. No public statements likely to prejudice proceeding. Example: Lawyer thinks judge made big mistake in trial. During trial, may lawyer Example: Lawyer thinks judge made big mistake in trial. During trial, may lawyer Complain in private to judge’s clerk? Complain in private to judge’s clerk? Complain to judge in private? Complain to judge in private? Complain to newspaper? Complain to newspaper?

7. Judge’s Duties Promote integrity and avoid even appearance of impropriety. Promote integrity and avoid even appearance of impropriety. Be impartial, competent and diligent by Be impartial, competent and diligent by Avoiding bias, prejudice or harassment; Avoiding bias, prejudice or harassment; Avoiding ex parte (one sided) communication; Avoiding ex parte (one sided) communication; Disqualifying self when impartiality might reasonably be questioned. Disqualifying self when impartiality might reasonably be questioned.

8. Judge’s Duty to Promote Integrity and Avoid Appearance of Impropriety Judicial duties more important than personal or non-judicial activities for judge. Judicial duties more important than personal or non-judicial activities for judge. Judge must always comply with the law. Judge must always comply with the law. Judge must avoid even appearance of impropriety to promote public confidence in law. Judge must avoid even appearance of impropriety to promote public confidence in law.

9. Judge Must be Impartial, Diligent and Competent Show no bias, prejudice or harassment based on Show no bias, prejudice or harassment based on Gender Gender Race Race Religion Religion Age Age Marital status Marital status Ethnicity Ethnicity Socioeconomic status Socioeconomic status Avoid Ex Parte (one- sided) contacts Avoid Ex Parte (one- sided) contacts Disqualify self if he/she has Bias about a party or a lawyer; Knowledge of facts in case; Prior involvement in case as a lawyer, witness or judge; Economic interest in case; or Present involvement in the proceeding by anyone closer than cousin as lawyer, witness or party.

10. Appearance of Impropriety: Bias Judge calls prosecutor by full name and title, but calls defense lawyer by first name only. Judge calls prosecutor by full name and title, but calls defense lawyer by first name only. Judge calls defense lawyer a “nice young woman.” Judge calls defense lawyer a “nice young woman.” Judge calls defense lawyer “nice young man from the countryside.” Judge calls defense lawyer “nice young man from the countryside.” Prosecutor refers to witness as “nice young married woman.” Prosecutor refers to witness as “nice young married woman.” Are any of these improper? Are any of these improper?

11. Appearance of Impropriety: Disqualification Judge was in university class with prosecutor, comes from same village, worked in same office for two years. Judge was in university class with prosecutor, comes from same village, worked in same office for two years. Ten years later, prosecutor brings case before judge. Ten years later, prosecutor brings case before judge. Must judge disqualify himself from the case? Must judge disqualify himself from the case?

12. Appearance of Impropriety: Special Treatment Judge has government car for official duties. Judge has government car for official duties. May judge give prosecutor a ride home in government car? May judge give prosecutor a ride home in government car? May judge give a friend (not a lawyer) a ride home in government car? May judge give a friend (not a lawyer) a ride home in government car?

13. Tashakor / Me Herabani ستاس ې څخه مننه Thank you