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Unseen Labour, Unmatched Impact: Struggles And Strategies Of Supervising Lawyers In Canadian Clinical Law Programs, Sarah Buhler, Gemma Smyth

Dalhousie Law Journal

Supervision has been described as the “beating heart” and the “core” of clinical legal education. Yet lawyers who supervise law students in clinical programs have challenging and poorly understood roles within Canadian legal education. This article analyzes interviews with lawyers who supervise students in Canadian law-school affiliated legal clinics. Supervising lawyers describe the tensions between their roles as lawyers, supervisors and mentors, university or non-profit employees, social justice advocates, members of law societies, and clinic team members. These tensions often exist within an environment of lower pay, poor job security, substandard treatment by colleagues, and inadequate training. Despite these challenges, …

The Criminalization Of Black Friendship, Kinship And Belonging, Reakash Walters

Dalhousie Law Journal

This paper posits that the Canadian state's attempt to target organized crime through the Criminal Code's criminal organization provisions has led to the criminalization of everyday expressions of Black life, including the criminalization of Black friendship. The statutory architecture of the regime incentivizes criminal legal actors with limited contiguity to Black culture to conflate bids for connection, association, and friendship within Black communities as gang activity.

Before the criminal organization provisions were enacted, Canada had no legacy of directly criminalizing organized crime. Localized violence in Quebec during the mid-1990s led to rushed amendments to the Criminal Code to target biker …

Lost At Sea: The Managerial Exclusion After Casinos Du Québec, Brian Langille

Dalhousie Law Journal

Is the managerial exclusion constitutionally dead or alive? In Casinos du Québec the Supreme Court of Canada somehow managed to make this a mind-boggling question. The Court also managed to bizarrely but blithely establish a higher threshold test for freedom of association violations than for unconstitutional intrusions upon other Charter freedoms. This comment addresses both of these shocking results but also seeks to go further and show how the Court’s entire freedom of association adventure is not only scary, but also unnecessary.

L’exclusion des postes de direction est-elle constitutionnellement morte ou vivante? Dans l’affaire Casinos du Québec, la Cour suprême …

Healthcare Discrimination Under The Canadian Charter Of Rights And Freedoms, Mélisande Charbonneau-Gravel, Sébastien Jodoin, Siobhan O’Connell

Dalhousie Law Journal

This paper explores the role that the Canadian Charter of Rights & Freedoms could and should play in addressing and redressing discrimination in the context of healthcare in Canada. Drawing on landmark as well as recent jurisprudence, we analyze how sections 7 and 15 of the Charter apply to three types of healthcare discrimination: (1) lack of access to healthcare and health services; (2) lower quality of services, and attitudes and biases faced in diagnosis and treatment; and (3) physical, verbal, psychological, and sexual abuse experienced by patients. Our analysis highlights the ongoing, problematic nature of the prevailing interpretations of …

Front Matter, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The Trial Manual 11 for the Defense of Criminal Cases is a guidebook for criminal defense lawyers at the trial level. It covers the information a defense attorney has to know, and the strategic factors s/he should consider, at each stage of the criminal trial process. It is organized for easy access by practitioners who need ideas and information quickly in order to jump-start their work at any given stage.

Chapter 1 - Introduction And Overview, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This Trial Manual is a how-to-do-it guidebook for handling criminal cases from beginning to end. It provides a compact guide through the stages of an ordinary criminal case, from arrest and investigation to appeal. Its focus is upon the key points at which defense counsel must make decisions and take actions. Options and factors to be considered in each decision, and steps that can be taken to assert a client’s rights and protect the client’s interests at each stage, are laid out.

Table Of Contents, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

TABLE OF CONTENTS
PART ONE: INTRODUCTION AND OVERVIEW (Chapters 1-2)
PART TWO: INITIAL STAGES OF THE CASE THROUGH ARRAIGNMENT (Chapters 3-16)
PART THREE: PROCEEDINGS BETWEEN ARRAIGNMENT AND TRIAL (Chapters 17-31)
PART FOUR: TRIAL (Chapters 32-46)
PART FIVE: POST-TRIAL (Chapters 47-49)

Chapter 6 - Interviewing The Client, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The first interview with a criminal client is probably the most important exchange that counsel will have with the client. It largely shapes the client’s judgment of the lawyer. Any initial impressions counsel makes may be indelible. At the least, this interview will strongly affect all future dealings between the two. The lawyer’s primary objective in the initial interview is to establish an attorney-client relationship grounded on mutual confidence, trust, and respect.

Chapter 6'S Interview Checklist § 6.15, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The following checklist covers most of what the lawyer will have to learn from a client in order to develop an effective defense at all stages of a criminal case from first contact through trial. It models a thorough interviewing process; more than a single interview will ordinarily be needed to gather all of the information it includes. When the charge is relatively minor, less extensive fact-gathering may be adequate. But counsel will do well to assume at the outset that all of the subjects flagged by this checklist need to be on the agenda; decisions to curtail coverage should …

Chapter 7 - Case Planning, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This chapter is designed to assist counsel in forming a plan of action and implementing it. Every case is unique in its facts and in the series of tasks that must be performed to prepare it for trial. But some generalizations are possible regarding techniques and considerations that can usefully guide counsel’s strategic planning. Section 7.2 describes a process for developing a theory of the case and explains the ways in which counsel can use the defense theory to guide the vital fact-gathering process (§ 7.2.2 infra), the selection and drafting of motions (§ 7.2.3 infra), and the actions that …

Chapter 3 - The Lawyer's Entrance Into The Case – First Steps, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Defense counsel may have occasion to enter a criminal case at almost any of the stages described in Chapter 2. In the early stages, at least, the crucial first steps to be taken are essentially the same. They are, in essence: (1) to make contact with the client, obtain the client’s authorization to represent him or her, warn the client against speaking with the police or others, and obtain information that counsel can use to seek the client’s release; (2) to speak to the investigating officer, find out whatever counsel can about the charges and the availability of release on …

Chapter 5 - State-Paid Assistance For The Defense: Obtaining State Funding For Counsel’S Time And For Defense Services, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As explained in § 2.3.4.2 supra, indigent defendants have a Sixth Amendment right to court-appointed counsel in all felony cases (Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938)) and on any charges of misdemeanors or petty offenses for which a term of imprisonment is going to be imposed as a result of conviction, “‘even for a brief period’” (Alabama v. Shelton, 535 U.S. 654, 657 (2002)), including cases in which the court imposes “a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’” (id. at 658) in the event …

Chapter 4'S Bail Questionnaire § 4.5, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The following questionnaire is designed principally for counsel’s use in obtaining from a client information pertinent to the amount of bail that should be set. Counsel can, however, easily convert the questionnaire into a form that can be notarized and submitted to a magistrate or judge in support of an application for bail in a manageable amount or for reduction of bail or for release on nominal bail or on recognizance, as is appropriate. Of course, caution must be observed not to use the form in this fashion if a client’s answers may supply incriminating information or investigative leads that …

Chapter 10 - Summary Of Things To Do Before First Court Appearance, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Contains "Checklist of Things to Do for an Arrested Client Between the Time of Arrest and the Client’s First Court Appearance" and "A Note on the Coroner’s Inquest and Similar Institutions."

Chapter 9 - Defense Investigation, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Investigation is counsel’s principal means for obtaining and vetting the information s/he needs. Although there are other fact-gathering tools – formal discovery proceedings (see Chapter 18); motions practice (see Chapter 19); plea-bargaining discussions (see Chapter 15); informal interchanges with a prosecutor (see § 7.2.2 supra) – they tend to be less reliable and comprehensive than independent defense spadework: meticulously searching the streets, paper and electronic files and records, and the internet. One key component of defense investigation, the interview with the client, is discussed in Chapter 6. The following aspects of investigation are discussed in the present chapter: locating and …

Chapter 4 - Bail, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As indicated in § 3.8 supra, one of defense counsel’s first tasks is to arrange for the arrested client’s release from custody as quickly as possible. Immediate steps to free the client on bail or another form of conditional release are outlined in that section. This chapter examines forms of conditional release and their problems in greater detail.

Chapter 13 - Defense Procedures After The Filing Of The Charging Paper And Before Arraignment, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Contains "Checklist of the Steps To Take During the Period Between the Filing of the Charging Paper and Arraignment", with further elaboration in subsequent sections.

Chapter 12 - Defensive Procedures Between Bind-Over And The Filing Of The Charging Paper, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Most States, by constitution or statute, require the prosecution of some or all serious crimes by indictment. The Fifth Amendment to the federal Constitution similarly requires that prosecutions for any “capital, or otherwise infamous crime [in the federal courts be by] . . . indictment.” The requirement is conceived principally as a protection to the defendant, and s/he may waive it. See, e.g., People v. Myers, 32 N.Y.3d 18, 20, 109 N.E.3d 555, 556, 84 N.Y.S.3d 406, 407 (2018) (upholding the validity of a defendant’s waiver of the right to indictment “[b]ecause Steven Myers and the court supervising his waiver …

Chapter 15 - Guilty Pleas: Preparing For And Conducting Plea Negotiations; Counseling The Client About A Plea Offer, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This chapter examines the processes by which counsel prepares for and conducts plea negotiations with the prosecutor and advises the client about a bargained plea. The chapter leads off with a discussion (in § 15.2) of the relative roles of counsel and client in deciding whether the client should plead guilty rather contesting a criminal charge. Part B (§§ 15.3-15.7) discusses the benefits and costs to a defendant of resolving a criminal charge by pleading guilty. It then reviews the factors that counsel should consider in developing an advantageous plea bargain to propose to the prosecutor or in assessing a …

Chapter 8 - Dealings With The Police And Prosecutor, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Counsel should usually establish contact with the investigating officers as early as possible in the course of a case. Thereafter, s/he should speak to them whenever the needs of the client dictate. Similarly, counsel should establish contact with the prosecuting attorney as soon as one is assigned to the case and should communicate with him or her periodically thereafter. The purposes of these contacts are (a) to learn as much as possible about the charges against the defendant (those already lodged and others that may later be lodged) and potential prosecution evidence; about the temperament of the prosecutor and of …

Chapter 21 - Removing The Case From The Criminal Court’S Docket: Motions For Diversion, Acd, Or Stetting; Transfer To Juvenile Court; Deferred Adjudication, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As noted in §§ 2.3.6 and 8.2.2 supra, many localities have more or less formal procedures for “diverting” criminal cases out of the system. Such diversion procedures go by different names in different jurisdictions (including “adjournment in contemplation of dismissal” (“ACD”) and “stetting”)

Chapter 22 - Change Of Venue Or For Disqualification Of The Judge, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The general principles governing initial venue in criminal cases are sketched in § 20.5 supra. As that section indicates, a charging paper filed in the wrong venue is usually subject to a motion to quash or to dismiss. In some jurisdictions, however, the defendant’s remedy may be merely a motion for transfer to the court of proper venue. Statutes, court rules, local practice, canons of judicial ethics, and opinions rendered by a jurisdiction’s professional-ethics committee or agency provide varying grounds and procedures for objecting to a particular judge’s presiding at trial or on pretrial matters.

Chapter 19 - Motions Practice In General, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The following sections deal solely with non-evidentiary motions hearings, describing the procedures followed in such hearings and suggesting approaches to take in arguing motions. Techniques for conducting evidentiary hearings on motions to suppress are covered in Chapter 24; and much of the tactical advice offered in that chapter applies to other evidentiary motions hearings as well. See, e.g., §§ 24.2, 24.4-24.6 infra; and see § 18.1 concluding paragraph supra.

Chapter 27 - Motions To Suppress Identification Testimony, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

This chapter examines the various doctrines governing suppression or exclusion of identification testimony. Procedural requirements governing suppression motions and strategic considerations in drafting the motions are discussed in §§ 17.3-17.11. Techniques for conducting a suppression hearing are discussed in Chapter 24.

Chapter 28 - Defense Motions To Advance Or For A Continuance; Motions To Dismiss For Want Of Prosecution; Speedy Trial Motions, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Statutes or court rules establish criminal terms of court, at which the principal criminal business is done. Local practice may or may not allow the handling of particular phases of criminal cases out of term, such as the hearing and disposition of pretrial motions or the entry of a guilty plea and reference of the defendant for presentence investigation. Magistrates and justices of the peace ordinarily sit continually throughout the year; and in the courts of record, matters that are handled by ancillary procedures such as habeas corpus are never confined to the criminal terms.

Chapter 30 - Retaining And Working With Expert Consultants And Potential Expert Witnesses, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

There is a host of types of experts that may be useful in a criminal case. For some examples, see § 5.2 seventh paragraph supra.

Chapter 29 - Defense Trial Preparation, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Defense trial preparation culminates in the selection of the witnesses and evidence that will be presented at the trial (and, where applicable, at any pretrial evidentiary motions hearings such as suppression hearings (see Chapters 24-27 supra) and hearings on motions in limine (see § 17.5.3 supra)). Counsel must be wide-ranging in the search for sources of proof but highly selective in what s/he actually puts on at pretrial hearings and at trial. It is vital that s/he have an integrated theory of defense and that the evidence be tightly organized so that the defense theory will come across clearly in …

Chapter 18 - Pretrial Discovery; The Pretrial Conference, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

As a matter of practice, criminal discovery involves two processes or phases: informal and formal discovery. Most prosecutors are willing to hand over to the defense upon request certain categories of materials which it is clear that a court would order the prosecutor to divulge if the defense made a motion to discover them. Informal discovery devices (such as the discovery letter (see § 18.5 infra) and the discovery conference (see § 18.6 infra)) provide a quick route to obtaining this material. When the informal devices fail because the prosecutor refuses voluntarily to divulge information requested by the defense, counsel …

Chapter 31 - Interlocutory Review Of Pretrial Rulings By Means Of Prerogative Writs, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

Yet in virtually every State there are excellent doctrinal bases to support interlocutory review. Appellate courts are generally given by statute the power to issue the prerogative writs of mandamus and prohibition. Traditionally, the writs lie to compel (in the case of mandamus) or to prohibit (in the case of prohibition) action by an inferior court that is conducting any proceeding in a manner rendered unlawful by lack of jurisdiction or gross abuse of discretion. Many pretrial rulings in criminal cases would seem susceptible of being brought within the framework of these concepts.

Chapter 26 - Motions To Suppress Confessions, Admissions, And Other Statements Of The Defendant, Anthony G. Amsterdam, Randy A. Hertz

Trial Manual for the Defense of Criminal Cases

The doctrines described in this chapter supply grounds for suppressing not only confessions but any statement by the defendant – “whether inculpatory or exculpatory – that the prosecution may seek to introduce at trial” (Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980) (emphasis in original); see also Miranda v. Arizona, 384 U.S. 436, 476-77 (1966)).