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Unrepresented criminal defendants: Beware

Oct 02, 2009 Unrepresented criminal defendants: Beware

What is the meaning of the Sixth Amendment right to effective assistance of counsel — and the Fifth and Fourtheenth Amendment right to due process — if prosecutors communicate directly with unrepresented criminal defendants soon after their arrests, to start the clock on short court filing deadlines without the assistance of a defense lawyer?

In one Virginia county where I regularly practice, within two days after my client’s arrest and three days before I was hired, the prosecutor mailed my client a notice of intent to introduce at trial my client’s certificate of analysis of his breath test results without necessitating live testimony of the breath technician, and advised him of his statutory right — within fourteen days of the filing of that notice with the court — to file an objection with the court to the trial admission of the certificate of analysis.

Unless an unrepresented defendant is accustomed to the often adrenaline-filled world of tight court filing deadlines, how many of them will miss the deadlines? Plenty, particularly since — as a colleague points out — many defendants simply do not accumulate the funds to pay a lawyer until at least two weeks has passed. If they do hire a lawyer, the lawyer needs to ask if they receive a notice of the prosecutor’s intent to introduce the certificate of analysis without live testimony.

How can lawyers help alleviate the injustice of a missed two-week deadline by an unrepresented defendant? For one thing, we can spread the word on our blogs and elsewhere that no lawyer is needed to file the objection, and to provide a link to the approved form for filing the objection. At minimum, lawyers can tell visiting potential clients of the right to file the form, and to hand a blank one to them regardless of whether they might hire the lawyer.

In the foregoing spirit, here is the form for objecting to the introduction of a certificate of analysis, and here is the form for objecting to the introduction of an affidavit. Here is my blogposting on the Virginia law update that spawned these forms.

The foregoing is not enough, though. No matter what motivates the foregoing prosecutorial practice — whether it be due to legal requirements to file such notices a certain number of days before the trial date, or a hope that unrepresented defendants will not act on such notices — the situation unacceptably disserves criminal defendants who are not represented at the time they receive the notices.  

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