Privileging Public Defense Research

Abstract

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect the very communication that is being studied. This Article discusses these problems and some responsive strategies. After assessing the available alternatives, the Article argues for judicial enforcement of an evidentiary privilege that protects and promotes empirical research on this high-priority topic.

Keywords: public defense, empirical research, evidentiary privilege, research ethics