As prosecutors, there are some things we can do to avoid a reversal for ineffective assistance of counsel. While we do not have access to the strategies of the defendant, we can make a record that supports the use of a strategic defensive decision. You appellate section will thank you.

For example, when I begin providing discovery, I often will ask the defense attorney to abandon the use of formal motions and accept informal discovery. Such discovery is broader than required by the rules. But my benefit is avoiding the trap of technical rules and deadlines.

But this only works if I make a record at the pretrial hearing. I usually stand up and announce that the state and defense have agreed to pursue informal discovery, explaining the absence of numerous motions and needless rulings on those motions. So, when the defendant later complains that his lawyer didn't do anything, there is a record to rebut it.

What other ways can we make a record that rebuts a subsequent ineffective assistance of counsel claim?

Keep records or a log of the items you provide the defense in discovery. I've even heard of people who get defense counsel to sign or initial the list. Just because you provide something doesn't mean it won't be the subject of litigation years in the future where you will have to prove that some document was turned over. Defense counsel don't keep files or lose them, or rats eat them, or fires burn them, etc. Then, some new lawyer comes along and finds something and makes a Brady claim. This way, something exists to show what the defense received, even if the defense lawyer and prosecutor are long gone. This would seem especially helpful in death penalty cases.

I agree with John - Our open file policy most of the time is the way to go - but we have the defense attorney sign a discovery list when they pick it up - also we started using a Bates stamp on discovery a couple years ago. There are always the one or two attorneys who calim that they didn't receive it - or we added documents etc. Not the vast majority of defense attorneys - just the bad apples (Not an intentional flame) We also recently ran into a situation in a death penalty case where the original defense attorneys lost copies of videtaped interviews on a State's punishment witness - then about attorney number 5 or 6 claimed that it was Brady material - but did confirm that the defense attorneys - trial or writ - lost their copies. We also had a filed letter with the court itemizing the documents and tapes we had turned over.