A lawyer must be very careful before employing the tactic of introducing prior convictions against his or her client in a criminal case.

In a capital murder case, I want to question the jurors during voir dire about my client’s four prior robbery convictions. I am doing so because I wish to let the jury know everything, strip the jury down, so I can get a true sense of who will oppose death and who will oppose life. My client is not testifying, so normally his prior robbery convictions would not be admissible. Can I do so?

This is a very difficult issue. Any person who tries criminal cases on a regular basis knows that unless the defendant testifies, normally his or her prior record for crimen falsi cannot be introduced against the defendant. There are exceptions to that under theories such as common plan scheme and design, etc. But for the sake of this question, let’s assume those exceptions are not applicable.

The question presents the stark issue of what is in the client’s best interest. There is a school of thought on capital jury selection that stripping the facts to the hard core essentials for the jury is a very effective technique to ensure a jury that is more favorable to life than death. On the other hand, by stripping the jury, the lawyer also notifies the jury that the person has prior convictions of a very serious nature, which the jury would never know in the guilt or innocence phase of the trial, assuming the client didn’t testify. Obviously, that could potentially taint the jury, particularly if the case at issue involves a homicide during a robbery and the client is asserting his or her innocence.

The case law is pretty clear in Pennsylvania that a lawyer who allows prior criminal convictions to be introduced against the client, when the law would prohibit the introduction, would be found ineffective unless there is a good tactical reason. For instance, if during the trial, the client didn’t testify and the prosecution brought out the four prior robbery convictions without objection, the case would ultimately be reversed on the issue of ineffective assistance of counsel unless the lawyer had some good tactical reason. But in this case, the lawyer’s tactical reason goes to the death penalty phase, not to the guilt or innocence phase.

Many times in death penalty cases, a lawyer is not necessarily dealing with an innocent client. Many times the focus is more on the issue of death or life as opposed to winning or losing and the guilty or not guilty. But there is no dispute that bringing out during jury selection that the client has four prior robbery convictions is not going to help the innocence or guilt phase of a particular trial.

Many lawyers will argue that this is a tactical decision that is left to them. Others would argue it might be a strategic decision because it goes to the ultimate objective of what is most important to the client — guilt or innocence or some lesser degree of conviction, as opposed to life or death. Under Rule of Professional Conduct 1.2, strategic decisions and objectives are usually a joint decision-making process. Tactical decisions are more left to the lawyer’s decision-making realm.

In any event, this kind of decision-making has to be done very carefully by the lawyer. The lawyer should document his or her file as to the reasons why. More importantly, the lawyer must discuss this with the client. That discussion should not take place a minute or two during the jury selection process when a lawyer wants to ask the question. The discussion must take place prior to the jury selection process and perhaps over a period of time so the client can make a rational decision and understand what the lawyer is trying to do.

Many times this concept of stripping the juror will result in a pretty good jury and perhaps ultimately save the client’s life. Also, it may result in a good verdict on the guilt or innocence because jurors who are more inclined to life are also usually better jurors and more favorable to a not guilty verdict. At least they are more open to that if the evidence is there.

The lawyer must document his or her discussions and reasons on this issue to be prepared for later ineffective assistance of counsel claims. Although this may be a very effective strategy, if it falls flat on its face later and the man gets death, clearly there may be issues of ineffective assistance of counsel. The lawyer has to clearly document in advance the strategic or tactical reasons why he or she is doing this and the fact that the client has been consulted repeatedly and either agrees or disagrees.

If the client disagrees, the lawyer is going to have to make a hard decision. Further, if the client disagrees vehemently and the lawyer still asks the question, that may totally undermine the attorney-client relationship and make it almost impossible for the lawyer to continue to represent the client because the client may no longer cooperate or become very hostile.

These are difficult decisions. Ethically, it appears the client should be fully consulted in this type of choice. Because it might go to the ultimate objective of the litigation, it may be that the client would have the final say in this one and overrule the lawyer. Normally, a lawyer’s decision on jurors is a tactical one and it is left to the lawyer and most clients will defer to that.

There is no easy answer. Many times the answer can be obtained by a careful and full consultation with a client over a period of time. But if it can’t be resolved, the bottom line is, does this affect the objectives of the trial? The objectives of the trial include the client’s decision-making process to some extent and, if this goes to the ultimate objective, i.e., the client wants the not guilty as opposed to life imprisonment versus death, then the lawyer may have to defer to the client.

A hung jury in a death penalty case is essentially the same as a life sentence verdict.

I was trying a death penalty case in the penalty phase and the jury came back with a question saying the jury was hung on the issue of life or death. The judge sent the jury back with the instruction to try to reach an agreement. Did the judge act unlawfully and unethically?

The answer is the judge acted wrongly. Whether it is unethical, the judge clearly violated the law. Under the death statute, 42 Pa.C.S.A. 9711, unlike in the guilt or innocence phase, in the death phase only one juror is needed for the imposition of a life sentence. Therefore, if the jury has noted they are hung, i.e., some jurors are voting for life and some jurors are voting for death, the decision has been made. The case can’t be sent back. Even if a jury note came out 20 or 30 minutes or an hour after the jury was given the decision-making process of life or death, it makes no difference. Once the jury says they have a verdict, the judge has to take it. If that was the case on the guilt or innocence and the jury came back in five minutes and said they had a verdict, would the judge send them back and say to deliberate longer? Obviously not. In a capital case, the statement of the jury that they are hung is the decision. The decision has been made. One or more persons have voted for life and that is the verdict.

The judge would be wrong in sending the jury back since it violates the death penalty statute. Whether it would be unethical would depend on the intent of the judicial officer. Many judges don’t understand this concept, particularly those who weren’t criminal defense lawyers and didn’t try capital cases. This kind of verdict in the capital phase is counterintuitive to what every judge and lawyer is taught, i.e., you have to have a unanimous verdict. But there is the exception in the death penalty cases.

If the judge fully understood and still sent the jury back, that clearly would violate a number of canons of judicial ethics because the judge would not be faithful to the law and would not be fair and impartial. (See Canons 1, 2 and 3 of the Code of Judicial Conduct.) The defense lawyer must clearly object if such a situation occurs to preserve the record for a double jeopardy situation. Death penalty cases are different, but every judicial officer must understand the nuances to ethically preside over a capital murder trial. •