Ethical and Legal Obligations Under the New Innocence Standard

Location: Lake Nona
Date: Fri, May 1
Time: 10:00 AM - 11:15 AM

In February of 2015, the American Bar Association will issue a revised version its influential Prosecution and Defense Function Standards. To create parity between defense counsel and prosecutors, the ABA created a rule, known as Defense Function Standard 4-9.4, which imposes an affirmative duty "to act" in "some" way upon learning of the existence of evidence that points to a former client's innocence or wrongful conviction. The duty is not specified, other than to state that the attorney "should determine whether - and if so, how best - to notify the prosecution and the court of such evidence" and should take the action necessary to preserve the client's federal filing deadlines, if any. This presentation will discuss whether the concept of parity is appropriate -- that is, whether defense counsel and prosecutors should have identical obligations in this regard when the convicted individual is a former client. The session will also discover unforeseen complications that may arise in complying with this rule: what should counsel do, for example, if the information pointing to innocence comes from a current client who refuses to have it disclosed? What should counsel do if she herself is responsible for the belated discovery of the evidence and coming forward is tantamount to admitting that she was ineffective? Finally, most defense counsel are public defenders staggering under an already excessive caseload. How can they comply with the added workload imposed by the rule?

 

201- Intermediate