There are limitations to comparative research on defence lawyering in death penalty cases. A review
of laws, policies and practice cannot tell the whole story of the multiple cultural, historical and
political factors that also influence the decision to retain and use the death penalty. Nevertheless,
we hope that by shedding some light on the role of the lawyer and the obstacles that prevent him (it
usually is him) providing a more effective defence we can help open up important conversations
among lawyers, with lawmakers and the judiciary.
It is critical that lawyers are part of any conversation to raise performance standards. Researchers
reported difficulties securing interviews with lawyers. While covid-19 restrictions were a factor, a
reluctance to be interviewed may also reflect unfamiliarity with social science research
methodologies and a degree of defensiveness among lawyers. The lack of continuous postqualification professional training, particularly on specialist topics such as the use of the death
penalty, limits the opportunities for lawyers to reflect critically on the law and their own
performance. Research from the US demonstrates the importance of lawyers understanding the
specific challenges of death penalty cases. Lawyers convinced they could secure a not guilty verdict
were unprepared for the critical sentencing hearing. NGOs in several countries are plugging an
important gap in awareness of these specific challenges and the need to go above and beyond in life
or death cases.
Our study supports the case for more resources to support lawyers. More funding is needed to
ensure lawyers have adequate time and facilities to prepare the defence case, including being able
to play a full role at each phase of the criminal proceedings. Without adequate funding most lawyers
cannot adopt the kind of team based approach that can draw on all relevant expertise both to
challenge the evidence and make a compelling case for mitigation.
The poorest are disproportionately impacted by the death penalty. Our preliminary findings suggest
the inadequacy of most legal aid systems in Asia particularly where the death penalty is involved.
During the next phase of our research we plan to look at legal aid in more detail and try to build the
political case for more support.
Finally, while more resources – both money and people – are necessary, the legal (and political)
context in which lawyers work is also critical. This paper tries to raise awareness of some of the legal
and institutional obstacles that lawyers face when representing persons facing the death penalty.
These findings will be discussed at a side event at the World Congress Against the Death Penalty in
Berlin in November 2022. We expect to publish a fuller revised report in the coming year.
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