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BGD Criminal Defense Attorney Outlines the Duty to Correct the Trial Court in a Criminal Case


The clients of criminal defense lawyers enjoy the right to remain silent. However, Bingham Greenebaum Doll LLP attorney K. Michael Gaerte and co-author James J. Bell recently discussed why prosecutors and criminal defense lawyers are often required to speak up and correct the trial court’s record in a criminal case in their “Inside the Criminal Case” column for the Indiana Lawyer.

For example, the Indiana Rules of Professional Conduct imposes a duty on all attorneys to “correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “take reasonable remedial measures” if a witness “called by the lawyer, has offered material evidence and the lawyer comes to [later] know of its falsity.” (See Ind. Professional Conduct Rule 3.3(a).) It should be noted that compliance with this rule is required even if a disclosure of information is protected under Rule 1.6. See Prof. Cond. R. 3.3(c).

Dickerhoff v. State

In the recent unpublished decision of Dickerhoff v. State (2015), Judge Margret Robb, in her concurring opinion, noted that attorneys have a “responsibility to correct any obvious [court] errors at the time they are committed.”

In Dickerhoff, the defendant signed a waiver of his right to an appeal, but the trial court erroneously advised him that he had the right to appeal prior to his entering the plea agreement. “Because the trial court gave Dickerhoff conflicting information regarding his right to appeal before he entered into his plea agreement, we cannot say that he knowingly, voluntarily, and intelligently waived his right to appeal,” said Judge Robb. Therefore, Dickerhoff benefited from the trial court error and the Court of Appeal reviewed his sentence.

In the concurring opinion in Dickerhoff, Judge Robb commented that “time, effort, and resources have been expended briefing and deciding a sentencing appeal that Dickerhoff had originally bargained away.” In addition, Judge Robb stated that the “attorneys representing the State and the defendant are both officers of the court,” and made clear the attorneys had a responsibility to correct obvious trial court errors by concluding that the attorneys in the case “should have corrected the trial judge when he misspoke.” Therefore, the defense attorney had a duty to correct a trial court error that gave his client the benefit of appellate review of his sentence.

Gaerte and Bell conclude that while it might seem unusual, it is an attorney’s duty to speak up and correct the trial court.

To learn more about K. Michael Gaerte and his practice, please visit his profile.

Read “Inside the Criminal Case: The duty to correct the trial court in a criminal case” in its entirety on the Indiana Lawyer website.



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