Access to Justice and Technology

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Access to Justice and Technology For Indigent
Criminal Defendants By Harry J. Jacobus III
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Barriers for Criminal defendant

• Biased judge
• Unprepared defense counsel
• Inadequate resources
• Very difficult to prove ineffective counsel
• (1) objectively poor representation
• (2) outcome would have been different

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Do Justice

• Prosecution has duty to do more than seek
  conviction
• Duty comes from prosecution's vast resources
• Most criminal defendants are poor
• Case law
• Ethical rules

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Prosecutorial Powers

• Evidence gathering/investigative powers
• More money
• Discretion charging suspects with crimes
• Pretrial incarceration which could lead to
• Loss of employment
• Embarrassment
• Loss of reputation
• Financial costs

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With great power comes great responsibility
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In addition

• Prosecution represents the people
• Which includes the defendant
• Role has been described as Quasi Judicial

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Prosecutor Duty Pre-trial
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Charging Decisions

• Constitution Minimal standard of probable
  cause
• Defined as heightened suspicion
• Dangers political pressure
• Personal aspirations
• Conviction psychology

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ABA Prosecution Standard

• Higher than constitutional standard
• sufficient evidence to support conviction
• Discretionary rule

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Possible solutions

• Make ABA rule mandatory
• Provide for additional sanctions
• Fines
• Suspensions
• Judicial admonshment

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Disclosure Rules

• Brady v. Maryland must disclose favorable
  material evidence
• Applicable regardless of good faith/bad faith
• Must provide evidence even if not asked for
• Affirmative duty to seek out evidence from
  detectives/police (no ignorance)

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Model rule 3.8

• Broader than Brady not limited to exculpatory
  evidence
• Must disclose impeachment evidence
• However, rule is aspirational not mandatory
• Law and Order example possible

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Possible solution

• New rule made enforceable by court
• (1) disclose any change in circumstances not
  reasonably discoverable by defendant and
• (2) not require the prosecution to divulge
  information that impeaches the defendant

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More Barriers

• No civil remedy for Defendant
• No criminal consequences
• Even in cases where prosecutorial misconduct
  found few prosecutors actually punished

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Prosecution Duty During Trial
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Inherent Conflict of interest

• Must the prosecutor step in when
• Judge is unfairly biased
• Defense counsel is hostile towards defendant
• Defense counsel is inadequate
• Should he pull punches
• Make motion to the court?

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No clear rule here

• Must zealously represent client or put on best
  case
• Must also ensure justice is done
• Putting innocent in jail conflicts with justice
• Some Prosecutors will take advantage of situation
• Others hold themselves to higher standard

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Access to Technology
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Types of Technology

• DNA Technology
• Ms. PowerPoint
• Sanction II

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How technology helps

• Efficiency in pre-trial preparation
• Increased understanding of case by parties
• Efficiency in managing court time
• Efficiency in presentation of evidence
• Increased understanding by jury and judge

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Access for indigent defendants

• Unfortunately, due to lack of finances, or
  politics, access to technology is lacking for
  public defense attorneys.

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Downside to Technology

• Can be expensive in the beginning Laptops,
  scanners, digital cameras, projectors, CD
  burners, software etc.
• Requires certain degree of computer proficiency
• More exposure to Murphy's law

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DNA Technology

• Most important because it is EVIDENCE
• Given great weight by Jury Judge
• Almost Exclusive tool of prosecution/private
  defense lawyers
• Technology very expensive
• Need expert to present evidence/prepare lawyer

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DNA Cont.

• Cost estimated at 10,000 to 30,000
• Difficult for defense to adequately cross without
  his own expert

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MS PowerPoint

• Ideal for linear presentations like
• Opening statements
• Direct examinations
• Closing argument

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Outlines

• Will never walk again
• Cannot provide for family
• Has lost health insurance
• Is on public assistance
• Needs costly nursing assistance

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Photo Illustrations
Shattered Pelvis
Broken Spine
El Muerte Stepped here
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Continued
Severed Spinal Cord
Useless
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Map Illustrations
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South Halsted
9300
9314
Tasty Good
Jan 9, 1040 PM
9400
N
9500
Alley
9600
9614
S
Macks Restaurant
9700
9720
Eddies Service Station
9800
9900
9940
Thompson Home
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Room Illustrations
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Tasty Good Diner
1040 Mike Miller
1030PM Sam Collins
Shirley Thompson
Counter
Stools
Door
Booths
South Halsted
S
N
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Pros/Cons

• Pro Easy to use
• Many Uses
• Pro Inexpensive (approx 150)
• Pro Good graphics
• Cons Limited to Linear Presentations

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Sanction II

• Non linear format
• Ideal for cross examination
• Better use of video depositions
• Easy viewing of Documents
• Cons expense (600.00)
• Cons need training to use effectively

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Effect of Unequal Resources

• Mere unequal resources not a due process
  violation unless
• Enflames Jury passion/prejudice
• Injects issue broader than guilt of D
• Makes unreasonable arguments in light of evidence