Privileging Public Defense Research

35 Pages Posted: 19 Jun 2018 Last revised: 4 Oct 2018

Janet Moore

University of Cincinnati College of Law

Ellen Yaroshefsky

Hofstra University - Maurice A. Deane School of Law

Andrew Davies

Government of the State of New York - New York State Office of Indigent Legal Services

Date Written: June 6, 2018

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

Suggested Citation

Moore, Janet and Yaroshefsky, Ellen and Davies, Andrew, Privileging Public Defense Research (June 6, 2018). Forthcoming in Mercer Law Review Vol. 69, No. 3, Spring 2018.; Hofstra Univ. Legal Studies Research Paper No. 2018-12. Available at SSRN: https://ssrn.com/abstract=3191849

Janet Moore (Contact Author)

University of Cincinnati College of Law ( email )

Post Office Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0126 (Phone)
513-556-1236 (Fax)

Ellen Yaroshefsky

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5882 (Phone)

Andrew Davies

Government of the State of New York - New York State Office of Indigent Legal Services ( email )

80 S. Swan Street
Alfred E. Smith Bldg. Suite 1147
Albany, NY 12210
United States

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