Defense counsel

“ It is evident that such a viewpoint must involve far-reaching effects on the position and task of the lawyer as the criminal defense counsel, even if outwardly criminal procedure does not essentially differ in its form from the former criminal trial. As defense counsel, the lawyer has shifted closer to the State and community. He is incorporated into the community of the administrators of justice and has lost his former position as unilateral representative of the interests of the defendant. ”

“ The defense counsel as a result of his dual position as a defense counsel of one person on the one hand and as an administrator of justice for a community on the other hand will repeatedly face the danger of the fact that the accused whom he is defending depends upon him, making him forget that he is not the mouthpiece of his client but an independent administrator of justice. ”

“ In one criminal case, several lawyers or professional representatives may not act side by side as chosen counsel for one defendant.
(2) The rules about obligatory representation by defense counsel do not apply. The presiding judge appoints a defense counsel for the whole or part of the proceedings if the difficulty of the factual or legal problems makes assistance by a defense counsel necessary, or if the defendant, in due consideration of his personality, is unable to defend himself personally. ”

“ The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the taking of a statement, the military judge may make any order required in the interests of justice, including authorization for the defense to make a general motion to suppress or general objection. ”

“ If the accused expresses a desire to be represented by individual military counsel, the defense counsel will immediately report the fact to the convening authority, through the trial counsel. Unless the accused otherwise desires, the defense counsel will undertake the immediate preparation of the defense without waiting for the detail or retention of any individual counsel. If the accused is represented by military counsel of his own selection, detailed defense counsel normally shall be excused. ”

“ The pleadings of the defense counsel have practically become a mere formality. Prior to the pleadings of the defense counsel the court and the public prosecutor have already agreed upon the penalty. In practice, the court in almost every case always agrees to the penalty asked by the Chief Public Prosecutor. ”

“ If, for instance, a defense counsel submits applications only upon request of the defendant, or if he proposes the hearing of character witnesses though he himself does not doubt the credibility of the hitherto heard witnesses, if he adds more lengthy letters of the defendant to his brief as appendices only to comply with the defendant’s wish, this indicates either a lack of the required self-criticism or of the necessary energy toward his client in carrying out his office as defense counsel. ”

“ On the contrary the best lawyers are barely good enough to be defense counsels or judges particularly when taking into consideration the vital importance of criminal law in wartime. Just as I fill the judges’ seats only with the best today—the same principle applies to civilian law as far as the judges in the divorce courts are concerned who similarly decide the fate of human beings—so only the best lawyers should be admitted as defense counsel. ”

“ Now we want to give the Defense Counsel everything that, in the fair conduct of the Trial, they ought to have. They are now receiving much more than any citizen of the United States gets on trial in the courts of the United States, in some respects, as to advance information and copies and help and service, and I do think that to ask us to disclose to them in advance either the names or substance of testimony—oftentimes the substance would disclose the witness—would not be proper. It was stated yesterday that we would take up a witness today. ”

“ You know, the implication of the questions, and they're not just from you, is that somehow a foreign counsel is going to bring a fairer or a more vigorous defense. And while we welcome and have set up a system where there can be foreign consultants and who can be extremely involved in the defense, again, the individuals -- the military counsel who understand the military system, who have practiced the military system, who have done court-martial trials, really I think are going to be in the best position to advise and represent someone. But it's a full complement of lawyers. ”

“ The Government will be ever tempted to use the forfeiture weapon against a defense attorney who is particularly talented or aggressive on the client's behalf the attorney who is better than what, in the Government's view, the defendant deserves. The specter of the Government's selectively excluding only the most talented defense counsel is a serious threat to the equality of forces necessary for the adversarial system to perform at its best. ”

“ He who is seeking “success” as defense counsel in penal cases must first ascertain what is understood by it. It should go without saying that a conscientious lawyer does not only see success where he manages to reduce the sentence proposed by the prosecutor, to find loopholes in the law for his client following the old tradition, or where he otherwise succeeds in exploiting the case to his client’s advantage. ”

“ May the conceded error of a trial court in withholding from defense counsel prior statements of principal Government witnesses be excused because a Circuit Court finds that the defense was not hampered in cross-examination of those witnesses? ”

“ The public prosecutor and the defense counsel have the right to put pertinent questions to the witnesses and to the experts, which the judge must permit in accordance with the regulations within the framework of the code of criminal procedure. ”

“ No individual, other than the defense counsel, accused, or, after referral of charges, the military judge, shall disclose to the trial counsel any statement made by the accused to the board or any evidence derived from that statement. ”

“ Certainly, a brief exposition of our position will expedite the trial by enabling the Court to rule expeditiously, but at the same time judiciously, and it is also our hope that by furnishing defense counsel with an understanding of the legality of the rules under which this evidence will be offered, they will not find it necessary to resort too frequently to empty objections.
We can afford to be candid with Court and counsel. It is only the lazy, the uninformed, or inherently dishonest and therefore unethical lawyer who seeks recourse to silence or obtusion. ”

“ I know full well that many lawyers shrink before this struggle for their new adjustment which calls at the same time for an honest pledge, because they deem it to be disloyal to their clients and therefore keep aloof from penal cases.
My appeal is not meant for them. For whoever shuns moral obligations or does not have the strength to see the fight through could never indeed perform useful work as a criminal defense counsel. ”

“ At that hearing, the burden is on defense counsel, because his clients are in possession of the relevant facts, to make a showing of a reasonable likelihood of conflict or prejudice. Upon such a showing, separate counsel should be appointed. "If the court has carried out this duty of inquiry, then, to the extent a defendant later attacks his conviction on grounds of conflict of interest arising from joint representation, he will bear a heavy burden indeed of persuading" the reviewing court "that he was, for that reason, deprived of a fair trial." ”

“ No respectable interest of the State is served by its concealment of information which is material, generously conceived, to the case, including all possible defenses.
This is not to say that convictions ought to be reversed on the ground that information merely repetitious, cumulative, or embellishing of facts otherwise known to the defense or presented to the court, or without importance to the defense for purposes of the preparation of the case or for trial was not disclosed to defense counsel. ”

“ The party on trial has the right to have counsel of his own choice, and the government must secure the attendance of such witnesses in his defense as he may designate. The rules of law and of evidence are very nearly the same as those which prevail in the civil courts. A military commission combines, to a great extent, the functions of both court and jury, as it has to decide on questions of law and evidence as a court, and on the guilt or innocence of the accused, in the light of law and evidence, as a jury. ”

“ The short answer to all this is, of course, that the record makes plain that defense counsel at the trial was given access to these police reports [5] and thus must be taken to have been aware of the very discrepancies of which the plurality now undertakes to make so much. There is no basis whatever in the evidence before us for the plurality's intimation that the reports seen by counsel may not have been those given to this Court or for its thinly veiled suggestion that in not making use of the supplementary report counsel may have been incompetent or worse. ”

“ The sixth amendment of the Constitution, before quoted, secures to the accused, in a criminal case, 'the assistance of counsel for his defense.' This security is, therefore, not dependent upon, or subject to, the power of Congress. They have no more authority to deny an accused the assistance of counsel, than they have to deny him a jury trial ”

“ Finally, I think the Court's new rule is vulnerable in terms of its own unimpeachable purpose of increasing the reliability of identification testimony.
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. [5] To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. ”

“ In these same inquiries, it is stated that if defense counsel were carefully selected from those who were recognized as unconditionally reliable, pro-State and judicially efficient lawyers, no difficulty should arise with respect to the secrecy of such proceedings. It is suggested that if an attorney should inquire concerning representation of an NN defendant, he should be informed that it is not permissible to investigate whether or not there was any proceeding pending against the accused. ”

“ All the defendants are accused of participation in a conspiracy. That is apparently intended to mean that every act brought up in the course of this Trial, no matter by whom it was committed and to whom it was done, is charged against every one of these defendants, and that he can be convicted on every one of these acts. Even though the individual Defense Counsel finds certain fields with which he must concern himself particularly, there are, nevertheless, no fields at all which he can entirely ignore. ”

“ Defense Counsel and Prosecution representatives should, of course, attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to this Tribunal, to be introduced as a part of its record.
4. The representative principle may also be employed to simplify the task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence. ”

“ Defense Counsel for the large organizations are also hardly in a position to make up for this delay in a short period of time. On the other hand, the actual material is extremely comprehensive, as in the case of the political leaders, where there are about fifteen to twenty categories, such as the Workers’ Front, Propaganda Section, Organization Section, and so forth, which must be examined as to their functions and as to their criminal character. ”

“ The Tribunal has observed that many of the Defense Counsel have already found it possible, quite properly, to absent themselves from court, and the Tribunal sees no reason why some of the time which must elapse for the conclusion of the case for the Prosecution should not be utilized in preparation of their defenses out of court. ”

“ Mr. President, if we recess, may I ask that the witness not be talked to by his counsel overnight? I think it is only fair, when a witness is under cross-examination, that he not have conversations with his counsel.
VON SCHIRACH: I should like to say to this document...
DR. SAUTER: Mr. President, I should like to have this question clarified as to whether as defense counsel I am entitled to talk with my client or not. Mr. Dodd forbade me to talk to my client some time ago ”

“ But in the first instance, to ensure that someone is rigorously and zealously represented, which is what we want to ensure. There are military lawyers who are assigned to them and these are people, again, who have got experience in the military system and who are chosen -- being asked whether they will be comfortable to do this. I mean, these people are not chosen to be military commission and defense counsel in that pool of people if they -- even though they might be able to represent a U.S. soldier -- if they would not feel comfortable doing this. ”