Section 649-102-10 - PRESENTING THE DEFENSE CASE1. Defense counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, defense counsel should consider whether the client's interests are best served by not putting on a defense case, and instead relying on the prosecution's failure to meet its constitutional burden of proving each element beyond a reasonable doubt.2. Confronting the Prosecution's Case A. Defense counsel should attempt to anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for judgment of acquittal.B. Defense counsel's belief or knowledge that the witness is telling the truth does not preclude cross-examination.C. In preparing for cross-examination, defense counsel should be familiar with the applicable law and procedures concerning cross-examinations and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, defense counsel should be prepared to question witnesses as to the existence of prior statements which they may have made or adopted.D. In preparing for cross-examination, defense counsel should: (1) consider the need to integrate cross-examination, the theory of the defense and closing argument;(2) consider whether cross-examination of each individual witness is likely to generate helpful information;(3) anticipate those witnesses the prosecutor might call in its case-in-chief or in rebuttal;(4) consider a cross-examination plan for each of the anticipated witnesses;(5) be alert to inconsistencies in witnesses' testimony;(6) be alert to possible variations in witnesses' testimony;(7) review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses;(8) where appropriate, review relevant statutes and local police regulations for possible use in cross-examining police witnesses;(9) be alert to issues relating to witness credibility, including bias and motive for testifying.3. Presentation of Evidence A. Defense counsel should not knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to take reasonable remedial measures upon discovery of its falsity.B. Defense counsel should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury, offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.C. Defense counsel should not permit any tangible evidence to be displayed in the view of the judge or jury which would tend to prejudice fair consideration of the case by the judge or jury until such time as a good faith tender of such evidence is made.D. Defense counsel should not tender tangible evidence in the presence of the judge or jury if it would tend to prejudice fair consideration of the case, unless there is a reasonable basis for its admission in evidence. When there is any substantial doubt about the admissibility of such evidence, it should be tendered by an offer of proof and a ruling obtained.4. Presenting the Defense Case A. Defense counsel should discuss with the client all of the considerations relevant to the client's decision to testify.B. Defense counsel should be aware of the elements of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.C. In preparing for presentation of a defense case, defense counsel should, where appropriate: (1) develop a plan for direct examination of each potential defense witness;(2) determine the implications that the order of witnesses may have on the defense case;(3) consider the possible use of character witnesses;(4) consider the need for expert witnesses.D. In developing and presenting the defense case, defense counsel should consider the implications it may have for a rebuttal by the prosecutor.E. Defense counsel should prepare all witnesses for direct and possible cross-examination. Where appropriate, defense counsel should also advise witnesses of suitable courtroom dress and demeanor.F. Defense counsel should conduct redirect examination as appropriate.G. At the close of the defense case, defense counsel should renew the motion for judgment of acquittal on each charged count.5. Jury Instructions A. Defense counsel should be familiar with the local rules and the individual judges' practices concerning ruling on proposed instructions, charging the jury, use of standard charges and preserving objections to the instructions.B. Where appropriate, defense counsel should submit modifications of the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense. Where possible, defense counsel should provide case law in support of the proposed instructions.C. Where appropriate, defense counsel should object to and argue against improper instructions proposed by the prosecution.D. If the court refuses to adopt instructions requested by defense counsel, or gives instructions over defense counsel's objection, defense counsel should take all steps necessary to preserve the record, including, where appropriate, filing a copy of proposed instructions or reading proposed instructions into the record.E. During delivery of the charge, defense counsel should be alert to any deviations from the judge's planned instructions, object to deviations unfavorable to the client, and, if necessary, request additional or curative instructions.F. If the court proposes giving supplemental instructions to the jury, either upon request of the jurors or upon their failure to reach a verdict, defense counsel should request that the judge state the proposed charge to defense counsel before it is delivered to the jury.6. Post-Trial Motions Defense counsel's responsibility includes presenting appropriate post-trial motions to protect the defendant's rights.
7. Post-Disposition Procedures Defense counsel should be familiar with the procedures available to the client after disposition. Implementation is as follows:
A. Defense counsel should be familiar with the procedures to request a new trial including the time period for filing such a motion, the effect it has upon the time to file a notice of appeal, and the grounds that can be raised.B. Defense counsel should inform the client of his or her right to appeal the judgment and/or the sentence or disposition of the court and the action that must be taken to perfect an appeal. In circumstances where the client wants to file an appeal but is unable to do so without the assistance of defense counsel, defense counsel should file the notice in accordance with the rules of the court and take such other steps as are necessary to preserve the client's right to appeal.C. Where a client indicates a desire to appeal the judgment and/or sentence or disposition of the court, defense counsel should inform the client of any right that may exist to be released pending the disposition of the appeal.D. Where a custodial sentence has been imposed, defense counsel should consider requesting a stay of execution of the judgment to permit the client to report directly to the place of confinement.E. Defense counsel should inform the client of procedures available for requesting a discretionary review of or reduction in the sentence imposed by the trial court, including any time limitations that apply to such a request.8. Courtroom Professionalism A. As an officer of the court, defense counsel should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism and by manifesting a professional attitude toward the judge, opposing counsel, witnesses, jurors, and others in the courtroom.B. Defense counsel should not engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before the judge.C. When the court is in session, defense counsel should address the court and should not address the prosecutor directly on all matters relating to the case.D. Defense counsel should comply promptly with all orders and directives of the court, but defense counsel has a duty to have the record reflect adverse rulings or judicial conduct which defense counsel considers prejudicial to his or her client's legitimate interests. Defense counsel has a right to make respectful requests for reconsiderations of adverse rulings.94- 649 C.M.R. ch. 102, § 10