Section 649-102-6 - CASE REVIEW & PREPARATION1. Defense counsel has a duty to conduct an independent case review regardless of the client's admissions or statements to the lawyer of facts constituting guilt. The review should be conducted as promptly as possible.2. Sources of case information may include the following:A.Charging Documents> - Copies of all charging documents in the case should be obtained and examined to determine the specific charges that have been brought against the accused. The relevant statutes and precedents should be examined to identify: (1) the elements of the offense(s) with which the accused is charged;(2) the defenses, ordinary and affirmative, that may be available;(3) any defects in the charging documents, constitutional or otherwise, such as statute of limitations, double jeopardy, or irregularities in the Grand Jury proceedings.B.The Accused> - If not previously conducted, an in-depth interview of the client should be conducted as soon as possible and appropriate after appointment of counsel. The interview with the client should be used to: (1) seek information concerning the incident or events giving rise to the charge(s) or improper police investigative practices or prosecutorial conduct which affects the client's rights;(2) explore the existence of other potential sources of information relating to the offense;(3) collect information relevant to the sentencing.C.Potential Witnesses> - Defense counsel should consider whether to interview the potential witnesses, including any complaining witnesses and others adverse to the accused. If defense counsel conducts such interviews of potential witnesses, he or she should do so in the presence of a third person who will be available, if necessary, to testify as a defense witness at trial. Alternatively, counsel should have an investigator conduct such interviews.D.The Police and Prosecution> - Defense counsel should secure information in the possession of the prosecution or law enforcement authorities, including police reports through the use of M.R.Crim.P. 16 and 16A. Where necessary, defense counsel should pursue such efforts through formal and informal discovery unless a sound tactical reason exists for not doing so.E.The Courts> - Defense counsel should request and review preliminary hearing tapes/transcripts as well as Grand Jury tapes. Where appropriate, defense counsel should review the client's prior court file(s).F.Physical Evidence - >Where appropriate, defense counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant to the offense or to sentencing. Defense counsel should consider viewing the physical evidence consistent with case needs.G.The Scene - >Where appropriate, defense counsel (or an investigator) should view the scene of the alleged offense. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, lighting conditions, and seasonal changes). Defense counsel should consider the taking of photographs and the creation of diagrams or charts of the actual scene of the offense.H.Expert Assistance >- Defense counsel should secure the assistance of experts where it is necessary in order to: (2) understand the prosecution's case;(3) rebut the prosecution's case;(4) investigate the client's competence to proceed, mental state at the time of the offense, and/or capacity to make a knowing and intelligent waiver of constitutional rights.3. During case preparation and throughout trial, defense counsel should identify potential legal issues and the corresponding objections. Defense counsel should consider the tactics of whether, when, and how to raise these objections. Defense counsel should also consider how to respond to objections which could be raised by the State.4. Relations with Prospective WitnessesA. Defense counsel, in representing a client , should not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.B. Defense counsel should not compensate a witness except as provided by Commission Rule. Chapter 302: Procedures Regarding Funds for Experts and Investigators.C. It is not necessary for defense counsel or defense counsel's investigator, in interviewing a prospective witness, to caution the witness concerning possible self-incrimination and the need for counsel.D. Defense counsel should not discharge or obstruct communication between prospective witnesses and the prosecutor. It is unprofessional conduct to advise any person other than a client, or cause such person to be advised, to decline to give to the prosecutor or defense counsel for co-defendants information which such person has a right to give.E. Unless defense counsel is prepared to forego impeachment of a witness by defense counsel's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, defense counsel should avoid interviewing a prospective witness except in the presence of a third person.5. Relations with Expert Witnesses Defense counsel who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert's opinion on the subject. To the extent necessary, defense counsel should explain to the expert his or her role in the trial as an impartial witness called to aid the fact finders and the manner in which the examination of witnesses is conducted.
94- 649 C.M.R. ch. 102, § 6