Frequently Asked Questions (FAQs)
You can access and download all the questions in PDF format here: Frequently Asked Questions
1. The duty to provide effective representation: what would a good lawyer do?
I was appointed to represent my client at the time of the trial and had no opportunity to meet with him beforehand. What should I do?
You should first ask the judge/court for more time. Your client has the right to adequate time to prepare his defense under well-established principles of international law. If your arguments are unsuccessful, it is imperative that you document your objection in writing, to the extent possible. You should explain how much time you were given to prepare and provide a list of all the things you were unable to do as a result of the problem. This practice serves a dual purpose: it educates the court, and it may serve as a basis for a successful appeal.
What should you do if you are meeting your client on the day of trial?
In some countries, lawyers do not meet with their clients until the day of trial. The UN Human Rights Committee has found that this violates the rights of the accused to adequate time and facilities to prepare his defense.
For example, in Little v. Jamaica, the petitioner only had 30 minutes for consultation with counsel prior to the trial and approximately the same amount of time for consultation during the trial. The Committee found that the time for consultation was insufficient to ensure adequate preparation of the defense with respect to both trial and appeal, stating: “the right of an accused person to have adequate time and facilities for the preparation of his defense is an important element of the guarantee of a fair trial and a corollary of the principle of equality of arms. In cases in which a capital sentence may be pronounced, it is axiomatic that sufficient time must be granted to the accused and his counsel to prepare the defense for the trial; this requirement applies to all the stages of the judicial proceedings.”.
What if a prison guard, courthouse employee, or other individual won’t let me see my client?
Try to keep your cool and maintain an even tone. It is usually a poor strategy to yell or berate an employee who has the discretion to help you. First, try to reason with them. Rather than placing blame on the person (“why won’t you let me see my client?”), try to separate the person from your problem (“I know it’s not your fault, but I’m having a lot of trouble trying to see my client.”).
If that does not work, ask to speak to their supervisor. If a supervisor is not available, write down their name and contact information, and leave peacefully. Be sure to note the date and time of your visit, and anyone that you spoke with. If you can wait until there is a shift change, you may have better luck with a different employee. If you are still unable to speak with your client, consider getting a court order or contacting a legal services organization for help. As a last resort, you may be able to file a complaint locally, or—if that fails— internationally.
What can I do if I do not speak the same language as my client?
Try to find an interpreter who speaks the language your client is most comfortable with, not just a language that your client knows. Much of the information you need may be difficult enough for your client to express in his native tongue. Adding a language barrier makes it more difficult for him to express himself, to understand your advice, and can lead to misunderstandings with adverse consequences.
If an official interpreter is not available, try to find someone who speaks your client’s language fluently. Never use a family member or witness as an interpreter, since they have an intrinsic bias that may affect the quality and objectivity of their interpretation.
What if it’s not feasible for me to meet with my client?
It is important to identify the reason why you cannot meet with your client. Difficulties such as transportation and a heavy workload are obstacles that you can usually overcome. It is important to distinguish between true barriers to communication, and those that simply make your job more challenging.
If it is truly impossible to meet with your client, however, you should still try to communicate with him by phone or by mail. These means of communication are far from ideal, since they can be monitored by prison staff. If communication with your client is not feasible, you should try to meet with his family and friends, since they may have information critical to your defense.
There is a significant class difference between my client and myself, and I expect that it might be a problem. What should I do?
It is common for there to be class differences between lawyers and their clients, especially in capital cases. The best approach will depend on local culture, but some general tips include:
Try to put your client at ease. Start conversations with small talk, and make sure your demeanor is friendly and casual. Where appropriate, ask if your client is comfortable. Where possible, bring food and drink to share with your client. If culturally appropriate, use everyday speech, dress in a way that will make your client feel comfortable with you, and express empathy with your client’s predicament.
Ask your client to explain his understanding of the circumstances, and fill in the blanks, making sure to ask whether he has any additional questions.
Do not avoid addressing important issues just because it requires you to acknowledge the class difference. If you are respectful and try to avoid offending your client, being straightforward and honest helps to establish trust.
What if your client is being interviewed and detained in a secret location?
In principle, you should be able to be with your client to provide legal assistance during the hearing. If you have not been able to assist them and they have been interviewed in a secret location, you must challenge the legality of this interview, the objective being to have the interview and the subsequent acts of the investigation annulled.
To this end, you can, depending on the circumstances, invoke the irregularities that taint the hearing:
o incompetence of the persons in charge of the investigation;
o illegal arrest;
o arbitrary detention;
o failure to notify the rights of criminal suspects
o use of violence, ill-treatment and torture etc.
Even if the record of the investigation is not quashed, this action may later help to remove from the record confessions that were obtained illegally, under pressure or with violence.
If your client’s health is fragile and requires special attention (medical consultation, care, etc.), try to inform the security personnel and keep proof of your action.
You can also alert national and international opinion through the media, or, by referring to human rights protection bodies, apply for interim measures because of the urgency of the situation.
What if your client is publicly portrayed by the media as the perpetrator of terrorist attacks?
This is a violation of the presumption of innocence, a right of any person suspected of having committed a crime. The presumption of innocence implies the right not to be portrayed as guilty before a conviction. This right applies to the investigation phase, the instruction phase, and the trial phase. You must ensure that this fundamental right is respected. To do so, you can :
o Obtain a ban on images of your client in handcuffs, or damning comments (as part of a defamation argument);
o Issue press releases and exercise, at your client’s request, a right of reply in the media;
o Acting in slander or defamation.
What if the prison staff will not leave you alone with your client?
You have the right to talk to your client alone and in confidence. The presence of prison staff will affect the quality of the interview, because your client will not feel confident to confide in you. It is therefore sometimes necessary to insist on being able to talk alone. It is your role to ensure that the right to confidentiality of your interviews is respected and to protest when this is not applied.
In one case in Mauritania, Fatimata Mbaye insisted that the prison guard leave the room where she was talking to her client. The guard said he had to be present for the lawyer’s safety. Fatimata Mbaye threatened to leave, and when the prison warden was notified of the situation, he confirmed the client’s right to speak with her lawyer alone. In most cases, it is best to try to speak with prison officials if there are problems with staff.
I’m a public defender, and my office requires me to represent multiple clients. What should I do?
Many jurisdictions have hefty caseloads, and you may feel that you do not have the option to refuse a court appointment. Nonetheless, it is your duty as a lawyer to try to recuse yourself from representing any client where you have a conflict of interest. Even if it is commonplace for lawyers to represent co-defendants in your jurisdiction, it does not follow that the practice is justified, and that you should simply accept your appointment without objection.
If you are unable to recuse yourself, you should notify the court of the conflict and why you are unable to recuse yourself. Wherever possible, you should file a written motion, since this may be required in order to preserve the issue for appeal.
What should I do if my client fires me?
This is a common response among capital clients. Often, they cannot control anything in their lives—what they eat, who they talk to, when they sleep, whether they can shave—and firing their lawyer is the only opportunity they have to exercise some control.
It is important to note that this response is often attributable to a breakdown in the lawyer-client relationship. Spending time with your client to build a relationship of trust is the crucial first step in ensuring that your client will allow you to present the most effective defense. Open communication with your client can benefit your client beyond his relationship with you, and can improve his general wellbeing.
If possible, try to address the fears behind the decision to fire you. It is important that you make it clear that your client is a partner in his defense, and that you will listen to his concerns and preferences. Take the time to explain recent developments in his case—or to address his concerns about lack of activity in his case.
2. Pretrial detention and bail
What should you do if you are unable to meet with your client after their arrest?
If you are unable to make contact with your client, try to gather information about the arrest and the charges against him/her from family members or anyone who witnessed the arrest. Then, with a letter of incorporation, go to the head of the police unit where he or she is being held and ask to see the person. If they refuse, document this refusal (e.g. by noting the names of the people who refused you access, the place, the date, etc.) and send a request for access to the relevant court or the prosecutor. Depending on the context of the case, consider whether it is possible and strategically useful to notify the media of this impediment to communication with your client.
What if the person conducting the investigation appears to be biased?
After meeting with the person in charge of the investigation, if you feel that they lack objectivity and impartiality, ask the prosecutor to replace him or her and explain why the person in charge might be biased. For example, a person who has ties to the victim or his or her family or who comes from the same village as the victim may lack objectivity. It is also possible that, for racial or ethnic reasons, they will favour one group and discriminate against the person you represent.
What should I do if I think my client may have literacy difficulties?
It is important to ascertain early in your relationship whether your client is literate. In some countries, illiteracy may be so common that your client readily admits his inability to read or write. In countries where literacy rates are high, your client may feel deep shame because of his illiteracy. Be gentle in your approach, and when you suspect your client may be overstating his reading skills, take measures that will allow you to assess his capacity to comprehend written documents. This is particularly important in cases in which your client has allegedly signed a confession.
➢ Offer to read documents to your client. Ask your client to explain information that was contained in documents that he claims to have read, so that you can gauge his level of comprehension.
➢ Consider whether this raises any competency or other legal issues.
What if your client has signed a statement that they are waiving their right to counsel and to remain silent?
The police sometimes use standard questionnaires for the minutes that mention that the person being interviewed is waiving his or her rights, without actually asking him or her about it. It is therefore frequent that a person being interviewed has not understood that he or she has the right not to answer the questions of the persons in charge of the investigation and has the right to request a lawyer.
Thus, even if the person signed a statement that they had waived their rights, you may be able to get the statement declared null and void, arguing that they were not able to understand the rights they were waiving or that they were not effectively informed.
Ask questions about the hearing: Did the interviewers verbally inform her of her rights? Did they ask her if she agreed to waive her right to legal counsel and remain silent before the hearing? Was she informed of her rights in a language she understands or was she assisted by an interpreter?
What should you do if you have been constituted after your client has made unfavorable statements?
Even if the facts appear to be damning for your client, you must not be satisfied with this “official” version and must verify the sincerity of the statements made as well as their concordance with the facts.
You must keep in mind that the minutes of the hearing have the value of simple information and can therefore be contested by providing proof to the contrary of the facts contained therein.
It is important to identify the damning facts that you cannot contest and to integrate them into your arguments on mitigating circumstances.
What should you do if your client has confessed as a result of torture and/or other ill-treatment?
If your client makes statements under torture, the first thing to do is to gather evidence to support the accusation of torture (forensic certificate, medical expertise, health book, testimonies, photos, etc.). For example, you can take pictures of their injuries with your phone and ask the prosecutor to have them examined by medical personnel who will prepare a report that can be added to the file. It is important to put everything in writing.
Inform the competent authority and, if possible, file a complaint against the persons responsible for these acts.
Ask for the nullity of the minutes of the hearing so that the confessions obtained in an irregular manner are set aside.
3. Investigation and other pre-trial preparation
I think my client is lying to me. What should I do?
Clients sometimes tell their lawyers less than the complete truth. Rather than be offended, it is often better to consider their motives. First, do not assume that your client lied on purpose-it might have been a simple misunderstanding. And even if your client lied intentionally, he may not have had malicious intent. He may have lied to protect someone else, or to avoid embarrassment. It takes time for clients to trust their lawyers, and sometimes clients will lie when they do not have faith in their lawyer’s willingness to work hard on their behalf. Many clients believe that their lawyer will only help them if they are innocent.
If you think your client lied about something relevant to his case, ask for clarification without making it sound like an accusation. Before posing your question, explain that it is important to his case, and reassure him that you will continue to fight for him regardless of what he tells you. Express empathy for his situation (for example, tell him that you know it’s not easy to be completely forthcoming with information that causes him pain and sadness).
This reiterates the importance of building a relationship before asking your client about the facts of their case. Ideally, you should meet with your client on a number of occasions before you ask sensitive questions about his potential role in any offense he is accused of committing. Build rapport by getting to know your client, chatting with him about his family, work, and hobbies. Build trust by taking the time to explain what he can expect regarding the proceedings in his case.
What arguments should be used to convince witnesses to give evidence about what they have experienced?
First, try to understand the reason why these people refuse to testify. Then, explain to them the stakes of the criminal procedure so that they understand that their testimony is crucial to the determination of the truth. You can tell them that a warrant or summons could be issued against them if the judge decides to hear them.
How do I know which witnesses to talk to if the police reports don’t identify any eyewitnesses?
First, you should talk to your client. Your client may know whether anyone witnessed the incident that led to his detention. Your client can also provide critical information regarding potential biases of witnesses likely to be called by the prosecution.
Wherever possible, you should also visit the crime scene and try to find anyone who may have frequented the area. Ask for help in locating witnesses from community leaders such as village headmen, religious leaders and others. Family members and friends can also provide useful information about potential defenses to the crime, in addition to mitigating evidence relevant to sentencing.
The witnesses live very far from where I live and practice law, and I have no transportation. How can I locate and meet with them?
If public transportation is not available, you can ask your client’s family members and friends, as well as community leaders such as village headmen and religious leaders to help gather witnesses in a location that is accessible for you.
You should also make full use of potential resources available through NGOs, paralegal associations, and law schools. Law students and legal clinics, for example, may be willing to assist you in your investigation in exchange for supervision and training. In Malawi, law students have assisted in interviewing family members and other mitigation witnesses in remote villages, and have helped to track down critical case files.
If meeting in person is not feasible, try to interview witnesses by phone.
What should I do if friends or family of the witness do not want me to interview the witness alone?
Interviewing each witness individually is the best practice to ensure that their statements are not tainted by the opinions of others within their family or community. This is particularly important when the alleged victim resides in the same community, and when witnesses live in a rural area or village where gossip about the incident has generated an accepted version of the truth that may not coincide with the facts. Sometimes, however, witnesses resist being interviewed apart from close friends and family members. In these cases, try to recognize and address their concerns. For example, in some cultures it may be inappropriate for a man to be alone with a woman who is not his wife or close relative. In such cases, it would be helpful to ensure that your investigative team includes members of both sexes.
If having others present during the interview is unavoidable, try to limit the number of people, especially if their presence may make the witness uncomfortable or less forthcoming. Also, ask those present not to answer for the witness, or make comments that may affect their statements.
4. Defending vulnerable populations
What should I do if it’s difficult to determine my client’s precise age?
Typically, the age of your client at the time the crime is easily determined. Countries are obligated under international law to provide effective birth registration systems,88 and the production of a birth certificate should provide adequate documentation of your client’s age.
Often, however, developing countries or countries recently emerging from conflict are unable to provide adequate birth registration systems. In situations where the age of a child involved in the justice system is unknown, the UN Economic and Social Council has mandated that countries take measures to ensure that the “true age of a child is ascertained by an independent and objective assessment.”89 Furthermore, international standards suggest that once there is a possibility that your client may be a juvenile, the state must prove he is not before he can be treated as an adult in the criminal justice system.90
Nevertheless, as your client’s advocate, you should make every effort possible to prove that your client is a juvenile if you believe him to be one. There are a number of different steps that you can take to determine the age of your client when official state records are unavailable.
Local community mechanisms that are in place to record births can be useful in providing documentation of your client’s age: in Ethiopia, UNICEF has contacted religious communities for certificates issued at the time of baptism or acceptance into Muslim communities in order to establish the age of unregistered individuals. In Sierra Leone, it has reached out to local chiefdoms that maintain similar records.91 You should begin by interviewing the family to determine whether similar local community traditions exist in the case of your client.
If you cannot obtain documentation of your client’s age through such traditional mechanisms, you can also seek the assistance of a physician.92 Physicians are sometimes able to approximate age through dental or wrist bone x-rays.93 It is important to be careful if you decide to seek such assistance, however: these methods can only estimate age. As a result, you must take care to emphasize the speculative nature of such procedures and ensure that an overbroad approximation does not disqualify your client from protections he might otherwise receive as a minor.94
Finally, you may be able to approximate the age of your client on your own by speaking to his family members. Many families are able to connect the birth of your client with a historically significant event, such as an earthquake or warfare, even when they can’t remember an exact date. This should give you a general sense for your client’s age.
Detecting mental impairments
How can you find out whether your client suffers from a mental illness? The questions you ask will vary, depending on the cultural context and your client’s educational level. Here are some questions that lawyers have found useful to ask their clients:
– Has he ever suffered a head injury?
– Has he ever been in an accident?
– Has he ever lost consciousness?
– Has he has ever been admitted to the hospital?
– Has he ever seen a traditional healer for any reason?
– Has he ever been prescribed traditional remedies for an illness of any sort?
– Has he ever suffered from seizures?
– Has he ever had periods where he lost track of time and “woke up” at a later time?
– Has he ever had inexplicable rages?
– Does he ever feel like he is possessed or “bewitched?”
– Does anyone in his family have mental problems?
– Has he ever been prescribed medication for any sort of mental problem?
What should I do if courts in my jurisdiction don’t typically allow expert testimony?
Do not assume that the court will not allow it in your case—there is a first time for everything. Navkiran Singh, a human rights lawyer from India, reported that he worked on a case where, despite the odds, the court allowed him to present expert testimony concerning the suicidal tendencies of his client’s wife, who his client was accused of killing.
Similarly, in Malawi, introduction of expert testimony – particularly with respect to an offender’s mental health – has now become accepted practice where before it was rarely, if ever, used. Since the introduction of such evidence, several judges have incorporated information gleaned from expert reports into their sentencing judgments.
There are very few qualified psychiatrists in the region where I practice. How can I obtain a competent assessment of my client’s mental health?
Even if there are no qualified psychiatrists in your region, most jurisdictions have devised a method by which to evaluate a defendant’s mental health. Mental health assessments are sometimes carried out by qualified nurses or individuals with forensic training, even if they are not officially licensed. If you believe your client has a mental disability or illness, the court will often refer the defendant to a mental hospital or clinic where the assessment will be conducted.
In regions where qualified mental health professionals are lacking, the standards for forensic assessments can be quite low.
Because your client’s mental health is highly relevant to his culpability and to his sentencing, you should do everything possible to consult with the individual who is carrying out the evaluation. This is important for several reasons. First, you may have critical background information relevant to your client’s mental health. If your client is uncommunicative or resistant to disclosing information about his mental illness, the person conducting the assessment may erroneously conclude that he does not suffer from a mental disability. Second, if you later intend to challenge the conclusions of the forensic assessment (for example, if you are raising an insanity defense and the forensic evaluation concluded that your client was not insane), you should learn as much as possible about the amount of time the forensic expert spent with your client, the testing methods he utilized, and his qualifications and training. Third, by meeting with the forensic expert you can help educate him about the scope of the evaluation in a legal context. This is particularly important when you are trying to establish that your client has a mental disability relevant to the sentencing determination.
What can I do if I don’t have funds to hire an expert?
First, consider asking for funds from the court. In many jurisdictions, lawyers file written motions asking for funding from the courts for necessary expert assistance. Remember, if you require expert assistance to effectively defend your client, it is critical that you make a written record regarding your inability to hire the expert. Your client has a right to a competent defense, and if you are deprived of necessary funding because your client is indigent, his rights to due process, a fair trial, and equal protection are at stake.
If no funds are available, consider reaching out to universities that teach psychology and forensic assessment. You may also be able to find qualified individuals to conduct the assessment on a pro bono basis.
In the alternative, you can look for qualified individuals who may not be licensed, but may be able to provide you with valuable information about your client. If they encountered your client before his arrest and can testify regarding his mental state, their testimony will still be relevant to the court’s assessment of his culpability as well as its sentencing determination.
As a last resort, some websites have information that will not necessarily help you in court, but could give you some direction.
What should I do if I think my client won’t consent to a psychological evaluation ?
First, be sure. Address your client directly and let him know why you think an evaluation would be helpful to their case. There are taboos surrounding mental disabilities in many cultures, so be respectful and avoid making him feel like you think there is something “wrong” with him. Again, being honest and forthcoming, while remaining considerate and respectful will make it easier for both you and your client to have this conversation and address the issue.
If your client still refuses, you have a difficult decision to make. If you strongly believe that it is in his best interest to have an evaluation, you may be able to get a court to order the evaluation. However, this could damage your relationship with your client and his trust in you. You must carefully weigh a number of competing factors: the extent of your client’s disability, the likelihood that he will be sentenced to death if evidence of his disability is not presented, and the availability of other defenses to the crime. In many cases, you will find that the need for an evaluation outweighs the potential harm to your lawyer-client relationship.
5. Trial rights and strategy
What should you do if you doubt the impartiality of one or more of the judges in the trial?
Before making allegations of bias, look to see if there is a rule in domestic law that allows you to challenge the competence of a judge without having to give reasons.
Before raising the issue of bias, you will need to gather evidence that there is a doubt about the impartiality of one of the judges, which could affect the outcome of the proceedings.
For example, you can show that at least one of the judges was involved in the proceedings beforehand, has a connection with the accused person (family relationship, relationship etc.) or has a personal interest in the outcome of the proceedings (existence of criminal proceedings between one of the parties and the judge or his/her family etc.).
In the alternative, you should be able to show that one of the judges has formed an opinion in advance that will influence his or her decision or that there are other reasons that call into question his or her impartiality.
6. Mitigation
Areas to look into during your investigation that may be relevant to the sentencing phase and/or mitigation:
(1) Medical history (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays, and neurological damage);
(2) Family & social history (including physical, sexual or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence; poverty, familial instability, neighborhood environment and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities);
(3) Educational history (including achievement, performance, behavior, and activities), special educational needs (including cognitive limitations and learning disabilities) and opportunity or lack thereof, and activities;
(4) Military service, (including length and type of service, conduct, special training, combat exposure, health and mental health services);
(5) Employment and training history (including skills and performance, and barriers to employability); and
(6) Prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services).
How to conduct an interview with your client or their family members to gather information about his or her life history and some sensitive topics?
– Begin by explaining who you are if you are meeting the person for the first time, and explain why you need to gather information about the accused person’s life history.
– Make sure the person understands the language you are using, and if not, use interpretation services.
– Do not use overly technical or intellectual language, but tailor your language to the person you are interviewing so that they understand you.
– Ask the person to tell you specific stories in as much detail as possible.
– In some cultures it may be taboo for a man to talk to a woman alone and discuss topics that affect her modesty. You may need to be accompanied by someone of the same gender as the person you wish to ask questions of.
– Don’t be judgmental and don’t act like you are conducting an interrogation. Try to put the person at ease so they feel confident to open up to you and reveal potentially difficult things about the accused person’s life history.
– For some topics that may cause shame, dishonor, or are not talked about openly in some cultures (e.g., substance use, sexuality, health, family, etc.), start by asking general, open-ended questions and then limit yourself to more specific questions. It can be beneficial to ask questions in a roundabout way. If you ask a sensitive question too directly, such as “Did you drink alcohol during your pregnancy? For example, you could ask if people make alcohol in the village, or if young people drink alcohol, or if they allow alcohol in their home. Try as much as possible to use the coded language of the community.
– Remind them that you will not publicly disclose information that they wish to keep confidential.
7. Appeals
What should I do if my country’s legislation does not provide for the right to appeal?
If there is a higher court—be it a court of appeal or supreme court—to which access is denied because of the nature of your case (for example, if your client was convicted by a military tribunal), lodge an appeal anyway and maintain that it is proper, based on your client’s right to appeal, using the sources listed above. If there is no such court at the national level, consider filing a communication or application to an international body, as described in Chapter 10. In any case, you should also be prepared to file an application for a stay of execution or clemency.
When might my client’s right to appeal be denied?
Two different situations may arise. Either your country’s legislation does not provide for your client to appeal his sentence, or the right to appeal is provided by national legislation but you are prevented from enforcing it.
Is it really too late? What can I do if I am consulted by a client after the deadline to file for appeal?
Determine why no appeal was filed on time:
1. Your client was not assisted by counsel, and did not know that he had the right to appeal or that there was a time limit to do so. Your client’s right to a fair trial includes the right to legal representation at all stages. You should present the appeal and argue that the late filing is excused because he was deprived of his right to be assisted by counsel on appeal.
2. Your client was assisted by counsel but the time limit was too short to file an effective appeal. You should present a new appeal, arguing that your client’s right to a fair trial includes the right to adequate time for preparation of his defense and the right to access to court, which must be effective and not theoretical.
3. The delay is due to the negligence of the previous counsel. In this case, equitable reasons can be invoked for excusing this procedural error. You can argue that a lawyer’s error in failing to file a timely appeal should not be held against the client, particularly when the client can demonstrate that he did not authorize or was not consulted about an untimely appeal. Error by counsel may allow you to argue that counsel was incompetent and therefore that the client was deprived of his right to counsel. Many countries have developed specific jurisprudence on the matter, and you should research it. You can also fall back on international principles that provide for effective counsel and a right to an appeal.
What should I do if my jurisdiction’s criminal procedure rules do not provide specific means of review that would allow me to explain the reasons my client did not file his appeal on time?
You should consider:
1. Lodging an appeal anyway, and maintain that it is admissible, based on the arguments above.
2. In many countries, there are mechanisms for filing extraordinary appeals where there has been a miscarriage of justice. Habeas corpus is another potential avenue for access to the courts.
3. Filing for clemency
What should I do if my country’s statutes provide for a right to appeal, but I cannot get the court to schedule a hearing?
You should first assess whether the delay is detrimental to your client or not. Delays can sometimes be useful. If your client’s guilt is certain, the crime is highly aggravated, and there is strong evidence against him, you should not necessarily urge the court to expedite his appeal. In cases such as this, time is your friend. Delays may extend your client’s life and open up new avenues for appeal—for example, if your Supreme Court issues a decision limiting the application of the death penalty.
If you have a solid strategic reason for expediting the appeal—for example, in a case where you have strong evidence of innocence, or where your client is gravely ill—you might consider contacting the office of the Public Prosecutor, who also might agree to expedite the appeal. Writing to the Chief Justice/President of the court and/or the registrar of appeals may also be an option. Your request for a prompt hearing should cite the potential violation of your client’s right of access to court and the right to be tried within a reasonable time. Another option, if available in your country, is to file for a writ of mandamus to be issued. Such a writ is, in essence, an order of a higher court requiring a lower tribunal to perform a lawful duty it has refused to carry out. If unsuccessful, you can consider filing a communication with international bodies.
How can I raise an ineffective assistance of counsel claim on appeal when I was counsel for the accused at trial?
In many cases, the lawyer who handled the case at trial will also handle the appeal. Even if the lawyer is a different individual, he may be a close colleague of the lawyer who handled the trial. These situations can create a conflict of interest whenever you believe trial counsel failed to carry out his duties to his client. How can you raise an ineffective assistance of counsel claim against yourself or a friend? Are you obligated to do so?
The answer to the latter question is YES. You must raise these claims because your duty is to your client, not to yourself or your colleague. But you should talk through the issue with your supervisor and your colleague so that they understand why you feel it is necessary to raise the claim. If you were the lawyer at trial and you feel you made serious errors, you should ask your supervisor or the court to appoint new counsel on appeal.
Can you file an appeal if the record of the person you are defending has been lost?
The loss of certain items or the integrity of the record of your client by the court administration should not be imputed to your client. Their right to file an appeal or review should therefore not be jeopardized by the absence of documents from their file.
In Malawi, in the context of sentence review proceedings for persons sentenced to death, many files were unavailable. In the case of Republic vs. Lackson Dzimbiri, the High Court ruled that the loss of the file should not penalize the convicted person by preventing him or her from exercising the right to appeal. The Court added that it would be inconceivable to impose a death sentence where part of the record is missing and there are grey areas surrounding the circumstances in which the offence was committed.