In judicial opinions, the defendant or appellant is
typically identified with the defense attorney or appellant’s counsel. For example, much of the language describes
how “the defendant objected to…” or “appellant argues on appeal that…” even
though the person who is objecting or arguing is the defendant’s or appellant’s
counsel, and not the defendant or appellant him or herself. In most cases, this technique of describing
arguments and events does not seem to make much of a difference to the outcome
or character of these arguments.
In some situations, however, identifying defense counsel
with defendant would seem to make a difference.
One situation is when an appellant argues that there was ineffective assistance
of counsel at trial. Certainly in
phrasing arguments, the defendant (or at this point, the appellant) will argue
that “defense counsel” rather than “defendant” did or failed to do things that
led to an unfavorable outcome.
But beyond this simple difference in phrasing, there seems to be a more significant difference. This difference arises when the defendant
testifies on his or her own behalf at trial.
In these scenarios, the defendant may say something that is harmful to
his or her case, much to the frustration of defense counsel. For instance, a defendant may state that she
has prior convictions and further testify that these convictions are irrelevant or were not
true. If this happens, defense counsel would
likely be prevented from objecting to the use of these previous
convictions by the prosecutor since the defendant would have already introduced
this evidence.
Compare this scenario to a situation where defense
counsel asks the defendant about a prior conviction on direct examination
despite the fact that this prior conviction is most likely not admissible (say
it is older than ten years or a misdemeanor not related to credibility). Again, defense counsel will likely be precluded from
objecting to the prosecution’s use of this prior conviction since the defense
counsel would have already introduced it.
On appeal, it would seem that the first defendant
would not be able to argue ineffective assistance of counsel, but the second
defendant would be able to do so. The
first defendant’s counsel, at most, failed to advise the defendant from discussing
her prior conviction. In the second
situation, the defense attorney is actively requesting the information, which
is a clear, identifiable action by counsel that could form a more compelling basis for an ineffective
assistance of counsel claim.
Comparing these two situations illustrates the
importance of advising defendants what they should or should not say. It seems generally more advantageous for defense
attorneys to elicit potentially objectionable material since (from a
pessimistic perspective) this does not seem to as apparently preclude later
ineffective assistance claims as information volunteered by the defendant.
From a less pessimistic perspective, as cases like People v. Turner, 789 P.2d 887, 905-907
(1990) illustrate, the defendant may argue on appeal that the elicitation of
the evidence by defense counsel was a matter of trial strategy rather than a mistake
– a strategy that may be successful in situations where the law later changes,
or if the evidence had already been admitted over the defense’s objection. If the defendant volunteers the objectionable
information himself, however, later objections to this evidence on appeal may
be forfeited, since this would look more like a failure of the defense counsel to
control the defendant’s testimony rather than a strategic decision by defense
counsel.
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