Who Makes the Big Decisions - Criminal Defense Lawyer or Client?

The Florida Supreme Court has decided that the criminal defense lawyer, not the client, makes the final decision as to whether to call a particular defense witness. The case was reported this week in the ABA Journal, here.

Vincent Puglisi, on trial for murder, wanted to call another person charged in the murder as a defense witness. This is a dangerous strategy in any jury trial, since the other person is likely to shift the blame to the defendant. Puglisi's lawyer didn't like the strategy, and refused to call the witness. To protect his client, Puglisi's lawyer took the issue up to the State's highest court.

In every jurisdiction, ethics rules and case precedents establish that only the client can make the final decision as to the exercise of certain fundamental rights. For example, in New Hampshire, the client has the absolute right to make six critical decisions that impact on fundamental rights enshrined in the Constitution: 1) whether to plead not guilty or guilty; 2) whether to have a jury trial, or a judge trial; 3) whether to represent himself, or be represented by a lawyer, 4) whether to concede any charges during the trial, 5) whether to take the stand in his own defense, and 6) whether to appeal. Jones v. Barnes, 463 U.S. 745 (1983).

A criminal defense lawyer can never make these decisions for the client, but must offer her best advice and counsel as to how to proceed.

The criminal defense lawyer, in consultation with his client, has the final say on most other decisions. That's one of many reasons why, when you choose a lawyer, you have to evaluate not only the lawyer's credentials, relevant experience and breadth of knowledge -- but perhaps more importantly, the lawyer's judgment. Can I trust this person to give me the right advice, and to make the right judgment, when its time to make a critical decision that may alter my very destiny?

In the end, the Florida Supreme Court held that a lawyer must be able to exercise professional judgment during a jury trial, and that the lawyer cannot fulfill this weighty responsibility unless the lawyer, not the client, has the final say as to whether to call a particular defense witness to the stand. I believe that the New Hampshire Supreme Court would agree, if presented with the same issue.