New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Jailhouse Lawyering is at Epidemic Proportions – and Defendants are Getting Hurt (and Doing it to Themselves)

At some point in the development of the American criminal justice system, somebody decided that it was a good idea to provide defendants with library resource materials so they could either defend themselves or assist their trained criminal defense attorneys in defending them.  Without putting too fine a point on it, it is my personal opinion that this has turned out to be one of the stupidest things any attorney or judge ever thought of, for the following reasons.

No Legal Training – Let’s start with the most obvious points.  Most criminal defendants have no formal legal training.  Understanding the contents of a statute, case, or legal treatise is simply beyond their ability.  Most defendants who spend their days in the prison library refuse to acknowledge that it is virtually impossible to read and understand legal materials without formal legal training.  My experience with clients who perform their own research and write their own briefs has revealed repeatedly that a defendant will, for example, latch onto an isolated phrase in a particular source because the few words at issue seem to advance their cause; however, they almost invariably take the isolated quote out of its larger context.  When read as part of the larger case or statute, it becomes clear that the phrase lacks the meaning contemplated by the defendant, and therefore does little – if anything – to improve their position.

No Knowledge of Court Rules – But the problems go far beyond this.  Defendants also do not understand that in addition to statutes and cases, there are procedural rules that affect virtually every aspect of a criminal case.  They refuse to see that legal arguments may stem from a given source, but must then be brought before the court in a manner consistent with all applicable procedural rules.  This means that arguments cannot typically be raised when and how the defendant wants to raise them.  The procedural rules act as an overlay to substantive sources, and govern the manner in which the latter can be used.  This point is simply lost on jailhouse lawyers.

No Knowledge of Evidence Rules – Moreover, many defendants absolutely insist on preparing their own papers which they often file and serve without prior notice to their attorneys, and this almost always has an adverse affect on their case.  For one thing, such papers may reveal the defense strategy in the case prematurely.  They may disclose the contents of privileged communications.  And, of course, statements that a defendant makes in such papers can often be used against them as binding admissions in their case.  As noted above, defendants do not know procedural rules.  Similarly, they do not know the rules of evidence.

Harm to Attorney/Client Relationship – Additionally, jailhouse lawyering almost always strains the attorney-client relationship.  Defendants do not understand that defense counsel’s time is best spent investigating facts, developing strategies to either plead or try the case, and preparing legally correct submissions for the court.  Defense attorneys seem to be spending greater amounts of valuable attorney time explaining to their clients why their own theories are completely off-base.  Aside from wasting attorney time, these discussions almost always anger the client, who cannot understand that the function of an attorney is not necessarily to do precisely what the client wants, exactly when and how the client wants it.  In this regard, it bears emphasizing that attorneys are court officers whose conduct is governed by myriad rules.  An attorney must provide vigorous representation, but in a manner consistent with those rules.  This means that attorneys cannot, for example, file patently frivolous motions notwithstanding the defendant’s belief that the motion is well-based and fully warranted.

Unwarranted Disclosure of Case Information – It was recently pointed out to me was that some inmates who apparently claim to have vast legal expertise are actually charging other inmates to prepare papers for them – and the latter are actually paying them.  Papers that were filed from county jails have turned up with inmate-calculated fee quotes written on them.  I do not know if or how the associated payments are being made, but the fact that there exist inmates that are willing to hold themselves out as competent counsel to other inmates certainly illustrates the nature and extent of this problem.  And why any defendant would discuss a matter as sensitive and as personal as a criminal case with another inmate who they probably do not even know is nothing short of astonishing.  Case-related information must be shared only on a strict need-to-know basis.

Taken together, the foregoing means that despite the original intention, jailhouse libraries are being misused and abused – with the result that criminal defendants are being poorly served and receiving less than what may otherwise be the most favorable outcome in their case.

Defendants who are contemplating jailhouse lawyering – either through their own efforts or by “retaining” the services of a fellow inmate – need to understand two issues.  First, they simply lack the training and skill that they need to represent themselves and they have to trust their attorney to provide effective representation.  If a particular defendant does not trust their lawyer, they should obtain a different attorney rather than try to represent themselves or enlist the “legal services” of another inmate.  They must also let their lawyer do their job.  While they can – and should – certainly assist their counsel with the factual side of their case, they need to stand back and allow their attorney to handle its legal aspects.  That’s why the lawyer is there.  Further, under no circumstances should a defendant ever discuss their case with a fellow inmate in a jail or prison facility.  Incarcerated defendants may not know who they are talking to, or what their agenda is.  The recipient of the information could easily take whatever they learn and try to turn it over to the prosecutor with an eye toward trying to obtain more favorable treatment in their own case.

James S. Friedman is a criminal defense attorney based In New Brunswick, New Jersey.  Mr. Friedman represents defendants in all state and federal courts in New Jersey and New York City.