Performance Guidelines for Criminal Defense Representation (2006)

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Preface to Fourth Printing (2006)

Since the initial publication of the Performance Guidelines for Criminal Defense Representation in 1995 much has changed in the criminal justice arena. “Problem solving” and “community justice” initiatives are sweeping the country. “Adjudication partnerships” have become an accepted way of conducting criminal justice business. Vigorous public education on the death penalty has catapulted criminal justice system reform into the mainstream media and elevated public awareness of the essential role of defense counsel. Calls by government entities for increased public accountability have reached a new level of sophistication, buoyed by technological advances that promote information sharing and management. Despite new tools and new trends, however, the core issue for the indigent defense community remains unchanged: the provision, across this country, of a competent lawyer to every person in criminal justice systems who does not have the means to pay for one.

The increased scrutiny on systems accountability and renewed public attention on the role of indigent defense provides a unique opportunity to re-focus policymakers and the indigent defense community on that core issue. The National Legal Aid & Defender Association (NLADA) is pleased to provide you with the latest reprinting of this foundational tool for building systems that deliver quality criminal defense representation.

Introduction to the 1995 Edition 

These Performance Guidelines for Criminal Defense Representation are promulgated by the National Legal Aid and Defender Association (NLADA), a private, non‑profit, national membership organization dedicated to assuring the availability of high-quality legal services for poor people. Since 1958, NLADA has specifically included poor persons accused of crimes in its goal. In the over thirty-five years since then, NLADA has, in a variety of ways, advocated quality defense representation ‑‑ training attorneys (especially those who directly represent poor defendants), filing amicus briefs in cases impacting on the provision of counsel, pooling information from defender offices and assigned counsel programs and redisseminating it, educating public officials and the public at large about criminal justice issues impacting on the poor, and promulgating standards relating to the provision of counsel. Such standards include  Standards for Defender Services (1976); Standards for the Appointment and Performance of Counsel in Death Penalty Cases (1987, amended 1988) [Hereinafter, NLADA, Death Penalty Standards] and Standards for the Administration of Assigned Counsel Systems (1989) [hereinafter NLADA, Assigned Counsel Standards].

The instant Guidelines reflect the knowledge and experience NLADA has gained in these endeavors, and represent the collective effort of experienced attorneys and law school professors. The Guidelines are intended to provide guidance to criminal defense attorneys (by identifying potential options, actions and relevant considerations) for the purpose of ensuring that all defendants receive the zealous and quality representation that should be their right.

Defending criminal cases is an increasingly complex and difficult job. The unending variety of factual situations presented by criminal cases and the constant changes in criminal law and procedure require that the attorney approach each new case with a fresh outlook. These complexities also make the drafting of general performance guidelines a difficult and challenging task. But there are procedures common to all criminal cases with which the attorney must be familiar in order to be able to incorporate and best utilize the varying facts and law of each individual case. The object of these Guidelines is to alert the attorney to possible courses of action that may be necessary, advisable, or appropriate, and thereby to assist the attorney in deciding upon the particular actions that must be taken in a case to ensure that the client receives the best representation possible. While these Guidelines will perhaps be most useful to the new attorney or the attorney who does not have significant experience in criminal cases, they also may be profitably examined by the experienced defense attorney in deciding upon the strategy and approach to a given case.

Just as criminal cases vary endlessly in their details, jurisdictions vary in practice and procedure. The language of these Guidelines is therefore general, implying flexibility of action by counsel appropriate to the situation. Use of judgment in deciding upon a particular course of action is reflected by the phrases "should consider" and "where appropriate."  In those few instances where NLADA believes a particular action is absolutely essential to providing quality representation, the Guidelines use the words "should" or "shall."

While the Guidelines are intended to be comprehensive, they are not exhaustive. Depending upon the type of case and the particular jurisdiction, there may well be additional actions that an attorney should take or consider in order to provide zealous and quality representation.

These Guidelines are not intended for application in death penalty cases, deferring to the NLADA Death Penalty Standards, supra. In addition, the Guidelines do not cover the area of post‑conviction obligations of an attorney or the duties of appellate counsel.

Following each Guideline is a list of Related Standards, including nationally recognized standards or codes (not necessarily focused on performance of counsel but addressing some aspects of representation) as well as statutes, regulations and policy manuals affecting attorneys in defender offices or assigned counsel programs. Following the Related Standards for each Guideline is a Commentary, which develops the rationale for the Guideline, drawing on primary legal and secondary materials. Where relevant, the Commentary contrasts the approach taken by these Guidelines with that taken by other standards.

These Guidelines do not take a position on the issue of whether criminal law should be formally recognized as a specialty by the organized bar.  The Guidelines do recognize that criminal defense is a legal practice requiring dedication and skill

The "black letter" text of these standards is available here for free. NLADA members have access to the full versions of standards, including commentary, related standards, and legal sources. Printed versions of standards are also available in our store.

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Guideline Section 1

Guideline 1.1 Role of Defense Counsel

Guideline 1.2 Education, Training and Experience of Defense Counsel

Guideline 1.3 General Duties of Defense Counsel

Guideline Section 2

Guideline 2.1 General Obligations of Counsel Regarding Pretrial Release

Guideline 2.2 Initial Interview

Guideline 2.3 Pretrial Release Proceedings

Guideline Section 3

Guideline 3.1 Presentment and Arraignment

Guideline 3.2 Preliminary Hearing

Guideline 3.3 Prosecution Requests for Non-Testimonial Evidence

Guideline Section 4

Guideline 4.1 Investigation

Guideline 4.2 Formal and Informal Discovery

Guideline 4.3 Theory of the Case

Guideline Section 5

Guideline 5.1 The Decision to File Pretrial Motions

Guideline 5.2 Filing and Arguing Pretrial Motions

Guideline 5.3 Subsequent Filing of Pretrial Motions

Guideline Section 6

Guideline 6.1 The Plea Negotiation Process and the Duties of Counsel

Guideline 6.2 The Contents of the Negotiations

Guideline 6.3 The Decision to Enter a Plea of Guilty

Guideline 6.4 Entry of the Plea before the Court

Guideline Section 7

Guideline 7.1 General Trial Preparation

Guideline 7.2 Voir Dire and Jury Selection

Guideline 7.3 Opening Statement

Guideline 7.4 Confronting the Prosecution’s Case

Guideline 7.5 Presenting the Defense Case

Guideline 7.6 Closing Argument

Guideline 7.7 Jury Instructions

Guideline Section 8

Guideline 8.1 Obligations of Counsel in Sentencing

Guideline 8.2 Sentencing Options, Consequences and Procedures

Guideline 8.3 Preparation for Sentencing

Guideline 8.4 The Official Presentence Report

Guideline 8.5 The Prosecution’s Sentencing Position

Guideline 8.6 The Defense Sentencing Memorandum

Guideline 8.7 The Sentencing Process

Guideline Section 9

Guideline 9.1 Motion for a New Trial

Guideline 9.2 Right to Appeal

Guideline 9.3 Bail Pending Appeal

Guideline 9.4 Self-Surrender

Guideline 9.5 Sentence Reduction

Guideline 9.6 Expungement or Sealing of Record