Strategies and Tactics of Criminal Defenders in Russia in the Context of Accusatorial Bias

Abstract

The authors present a sociological description of the work of the defense attorney in a criminal case on the basis of theories of practical action (M. de Certeau, J.C. Scott) that focus on the tactics of the “weak” party in social interaction and on mētis as a special kind of practical knowledge. The power asymmetry in Russian criminal proceedings in favor of the prosecution places the defense attorney in a weak position in terms of resources. Three levels of this asymmetry are examined: (1) the day-to-day micro experience of criminal investigation; (2) the inequality of the parties as embodied in law; (3) informal practices of investigators, prosecutors, and judges that violate the rights of the defense. As a result, the scope for strategic action by the defense attorney is constrained by his relations with the defendant and/or client while with other participants in the case he acts tactically. On the basis of expert interviews with defense attorneys the authors delineate types of strategic and tactical action in their work on a criminal case.

Keywords::

• defense attorneys
• legal profession
• accusatorial bias
• sociology of law
• sociology of professions
• strategy and tactics
• theory of practices

Notes

English translation © 2016 Taylor & Francis Group, LLC, from the Russian text © 2015 “Sotsiologiia vlasti.” “Strategii i taktiki advokatov v usloviiakh obvinitel'nogo uklona v Rossii,” Sotsiologiia vlasti, 2015, no. 27(2), pp. 135–67. Ekaterina Khodzhaeva is a Candidate of Sociological Sciences and a research associate at the Institute for the Rule of Law, European University in St. Petersburg. Yulia Shesternina Rabovski is a junior research associate at the Institute for the Rule of Law, European University in St. Petersburg. Translated by Stephen D. Shenfield.

^* The client may be either the person whom the attorney is defending or another person, usually a relative, who is paying the attorney to defend that person. Unless otherwise specified, “client” should be understood as meaning the person whom the attorney is defending.—Trans.

^1. Here and henceforth the terms “zealous,” “assiduous,” and “conscientious” as applied to the work of an attorney will be used as synonyms pertaining to the normatively given role of the defense attorney in a criminal case.

^2. For a brief review of Eisenstein and Jacob's classic study Felony Justice (1977), see Ekaterina Moiseeva, “Mikropolitika suda” in Sotsiologiia vlasti 2015, no. 27 (2), pp. 243–252.

^3. See the description of a specific instance in which the defense attorney negotiated with the state attorney and judge and bargained for a six months' reduction in the sentence but agreed to support a real term for the defendant and let the prosecution decide the size of the penalty (van Cleve 2012, p. 314).

^4. This relatively new version of the normative model recognizes that clients possess intellectual and cultural experience that can help the attorney make the most effective decision. For a more detailed account of the client-oriented approach see Binder, Bergman, and Price (1991).

^5. For a systematic presentation in Russian see chapter 11 in Volkov and Kharkhordin (2008, pp. 193–208).

^6. It should be said that in this article we do not attach the usual meanings to the terms “strategy” and “tactics.” In specialized legal literature, including literature aimed at defense attorneys, “strategy” usually refers to the overall goal of the defense whereas “tactics” refers to a specific line of conduct at a particular stage of work on a case. In this article we follow de Certeau in drawing a quite different distinction between strategy and tactics.

^7. “Procedural errors” usually refers to substantial violations by a body of preliminary investigation or (more rarely) by a court of norms of criminal procedure law—case materials that are incorrectly formatted, violate time limits, or contain other procedural defects. Here we cite just one example, but a very vivid one. One of our informants found an error in an order to schedule an expert assessment: by mistake the investigator had typed “acquaint” (oznakomlenii) instead of “schedule” (naznachenii) and corrected it by hand when signing it. “And then the case was handed to another investigator and when I studied the case… the first thing I looked for, of course, was the order, because I knew that it contained a violation. And I found that it was a quite different order, with my signature written in someone else's handwriting.… I said to the investigator: ‘Do you understand that were I to reveal this in court your expert testimony of assault and robbery would be deemed inadmissible evidence? And then you will have no assault and robbery, and that will be very bad for you. And so-and-so [the previous investigator—authors’ note] was dismissed, and then you take the case to court with a falsified document.' He sat there and looked at me like this. ‘OK, we'll do something.’ ‘Yes, let's do something.’ And then, you know, he made concessions in the case. Because it was a mixed bag.… In court it would lead to the judge issuing an order to exclude the testimony as evidence. The procurator would petition for the conduct of a second testimony and my client would still be charged with robbery. There would be no change there. But the investigator would have big problems. So you start to play on these problems of his. In other words, I understand that for me there is no way out of the situation but for him there is a way out” (female attorney with thirteen years' experience).

^8. The informant is referring to a second expert testimony ordered by the court for the purpose of rechecking the results of the expert testimony conducted at the stage of the preliminary investigation.

^9. Using data from 10,000 court decisions in criminal cases in 2011, Kirill Titaev shows a positive correlation between admission of guilt and the willingness of the investigator to drop the initial charge (Titaev 2014, p. 103.

^10. For many articles of the Criminal Code there is a “period of limitations” from the time when the crime is committed, upon the expiration of which the lawbreaker is released from criminal liability and punishment. By dragging out proceedings, the defense attorney can get the case terminated due to expiration of the period of limitations.