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necessary, that the court immediately rule on the motion, in order that counsel may make an informed decision about whether to present a defense case.

  • A.

    Counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, counsel should consider whether the client's interests are best served by not putting on a defense case, and instead relying on the prosecution's failure to meet its constitutional burden of proving each element beyond a reasonable doubt.

  • B.

    Counsel should discuss with the client all of the considerations relevant to the client's decision to testify. Counsel also should be familiar with the ethical responsibilities that may be applicable if the client insists on testifying untruthfully. Counsel should maintain a record of the advice provided to the client and the client’s decision concerning whether to testify. If the client does not follow counsel’s advice, counsel should consider having the client acknowledge in writing the advice provided by counsel.

  • C.

    The decision to testify rests solely with the client, and counsel should not attempt to unduly influence that decision. When counsel reasonably believes that testifying is in the best interest of the client, counsel should advise the client of the benefits and risks of that course of action. Similarly, when counsel reasonably believes that not testifying is in the best interest of the client, counsel should advise the client of the benefits and consequences of that course of action.

  • D.

    Counsel should be aware of the elements and tactical considerations of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.

  • E.

    In preparing for presentation of a defense case, counsel should, when appropriate, do the following:

    • 1.

      Consider all potential evidence that could corroborate the defense case, and the import of any evidence that is missing;

  • 2.

    After discussion with the client, make the decision whether to call any witnesses;

  • 3.

    Develop a plan for direct examination of each potential defense witness;

  • 4.

    Determine the implications that the order of witnesses may have on the defense case;

  • 5.

    Consider the possible use and careful preparation of character witnesses, along with the

risks of rebuttal and wide-ranging cross-examination;

  • 6.

    Consider the use of physical or demonstrative evidence and the witnesses necessary to admit it;

  • 7.

    Determine what facts necessary for the defense case can be elicited through the cross- examination of the prosecution’s witnesses;


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