Actions of the Defendant vs. Actions of Defense Counsel

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.