Who gets to make certain decisions in a criminal case, the defendant or the attorney?
In a criminal defense, certain decisions belong to the client/defendant after consulting with the attorney, while other strategic decisions can be made by defense counsel after consulting with the client/defendant. This guide seeks to help promote an understanding of these concepts.
Personal Decisions that Belong to the Client/DefendantCertain decisions in a criminal case belong to the client/defendant and cannot be made by the defense attorney. The client should consult with his or her attorney before making these decisions. These decisions include the following:
(1) What plea to enter
(2) Whether to waive a jury trial
(3) Whether to testify in his or her own behalf
(4) Whether to appeal
(5) Whether to represent himself or herself
(6) The objective of the representation
(7) The big-picture, general strategy of the representation
These decisions cannot be made by defense counsel without the client's consent. The courts have consistently recognized that the client/defendant has the right to make these decisions in a criminal case. Nonetheless, you do not have to make them alone. If you are a defendant in a criminal case, it is always a good idea to fully consult with your defense counsel before making any of these decisions. But ultimately, it is the defendant who makes these decisions whether or not the attorney agrees. For example, when faced with the question of whether to accept a plea bargain offer, the defendant can accept the offer even if his or her attorney thinks the offer should be rejected. On the other hand, a defendant is entitled to reject a plea bargain offer even if his or her attorney's advice is to take the deal.
Strategic Decisions that Belong to the Defense AttorneyIn contrast to the decisions listed in the section above, strategic decisions belong to the defense attorney. These strategic decisions include the following:
(1) Which witnesses to call
(2) Whether and how to conduct cross-examination
(3) Which jurors to accept or strike from a jury panel
(4) What trial motions to make
(5) Numerous strategic or tactical decisions (i.e., trial strategy)
These decisions can be made by the defense attorney without the client's consent. Just because these strategic decisions belong to defense counsel does not mean that the client/defendant does not have any input into these decisions. The attorney should consult with his or her client before making these decisions. But the courts have consistently recognized that an attorney has the power to make these types of decisions even if the client disagrees with it. For example, if the client wants his or her attorney to call a certain witness to testify at trial, but the attorney believes that the witness will cause greater harm than benefit to the client's case, then the attorney can elect not to call the witness.