In a criminal case, how much control does the defendant have over strategy?

It simply isn’t feasible for criminal defendants to make all the decisions regarding their cases. Some decisions, such as how to question potential jurors, rely heavily on the attorney’s professional skills and experience. Decisions like these also have to be made on the fly, which puts them largely beyond the control of defendants. In the heat of trial, attorneys can’t stop the proceedings and meet with their clients to make decisions about what questions to ask or objections to make.

Nevertheless, Standard 4-5.2 of the American Bar Association (ABA)  Criminal Justice Standards does provide that defense attorneys should make strategic and tactical decisions “after consultation with the client where feasible and appropriate.” It lists the following examples:

  • what witnesses to call
  • whether and how to cross-examine witnesses
  • what jurors to accept or strike (see Jury Selection in Criminal Cases for more)
  • what trial motions to make, and
  • what evidence to introduce.

Many attorneys think these decisions should be entirely in their hands. Thus, clients who want a voice in as many decisions as possible should discuss their wishes with their attorneys at the outset of and throughout the lawyer-client relationship. (There are, of course, certain decisions that must be left to the client—see Which decisions are up to the client?  Also see Should a lawyer involve the client in important decisions?)

Example: (Based on A Time to Kill) Carl Lee is charged with murder for shooting and killing two men who brutally raped his daughter. In the course of the shooting, Carl Lee also accidentally wounded a policeman, causing the him to lose a leg. During cross-examination of the policeman, Carl Lee wants his lawyer, Jake, to ask the officer whether Carl Lee should be punished for killing the rapists. Jake doesn’t want to ask the question, fearing that the policeman will want to see Carl Lee punished for costing him a leg. When Carl Lee finally convinces Jake to ask the question, the policeman dramatically supports Carl Lee’s actions. Nevertheless, Jake probably didn’t have an ethical duty to comply with Carl Lee’s wishes. In the heat of trial, lawyers normally have the tactical authority to decide what questions to ask. Besides, in real life, the witness’s opinion about the legitimacy of Carl Lee’s actions is irrelevant, so the question is probably improper.

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