Current through 2024-13, March 27, 2024
1. Purpose
The purpose of the initial interview is to acquire
information from the client concerning pretrial release (if needed), to provide
the client with information concerning the case and to begin to develop
knowledge of the facts of the case. Defense counsel should ensure at this and
all successive interviews and proceedings that barriers to communication, such
as differences in language or literacy, be overcome.
2. General Duties of Defense Counsel
A. Where defense counsel is unable to
communicate with the client because of either language differences or mental
disability, the defense counsel shall take whatever steps are necessary to
insure that he/she is able to communicate with the client and that the client
understands the proceedings. Such steps would include having defense counsel
obtain expert assistance including an interpreter for pretrial preparation,
interviews, and investigation, as well as in-court proceedings.
B. To ensure the preservation, protection and
promotion of the client's rights and interests, defense counsel must make
accommodations where necessary due to a client's special circumstances, such as
youth, mental or physical disability, or foreign language barrier.
3. Preparation. Prior to
conducting the initial interview, defense counsel should, to the extent
possible:
A. be familiar with the elements of
the offense and the potential punishment, where the charges against the client
are already known;
B. obtain copies
of any relevant documents which are available, including copies of any charging
documents, and law enforcement reports that might be available;
C. be familiar with the legal criteria for
determining pretrial release and the procedures that will be followed in
setting those conditions;
D. be
familiar with the different types of pretrial release conditions the court may
set;
E. be familiar with any
procedures available for reviewing the trial judge's setting of bail.
4. Initial Client Interview
A. The purpose of the initial interview is to
acquire information from the client concerning pretrial release, to provide the
client with information concerning the case and to begin to develop knowledge
of the facts of the case. The scope and focus of the initial interview will
vary according to the circumstances under which it occurs.
B. Defense counsel should conduct a client
interview as soon as practicable and if the client is in custody then in no
event within more than seven (7) days after receiving notice of an assignment
in order to obtain information necessary to provide quality representation at
the early stages of the case and to provide the client with information
concerning counsel's representation and the case proceedings. If the client is
not in custody, the interview should occur prior to the deadline for filing
initial motions.
C. Defense counsel
should convey the following types of information to the client:
(1) an explanation of the procedures that
will be followed in setting the conditions of pretrial release;
(2) an explanation of the type of information
that will be requested in any interview that may be conducted by a pretrial
release agency and also an explanation that the client should not make
statements concerning the offense;
(3) an explanation of the attorney-client
privilege and instructions not to talk to anyone about the facts of the case
without first consulting with the attorney;
(4) a general procedural overview of the
progression of the case, where possible;
(5) an explanation that the client has the
constitutional right to plead not guilty; to be tried by a judge or a jury; to
the assistance of counsel; to confront and cross-examine witnesses against
him/her; to testify; and to not be compelled to incriminate
him/herself.
(6) the nature of the
allegations, what the state must prove, and the likely and maximum potential
consequences;
(7) how and when
counsel can be reached;
(8) when
counsel will see the client next;
(9) realistic answers, where possible, to the
client's most urgent questions;
(10) what arrangements will be made or
attempted for the satisfaction of the client's most pressing needs, e.g.,
medical or mental health attention, contact with family or employers.
D. Defense counsel should request
the following types of information from the client:
(1) the facts surrounding the allegations
against or affecting the client;
(2) any possible witnesses who should be
located;
(3) any evidence of
improper conduct by police or other investigative agencies, mental health
departments or the prosecution which may affect the client's rights;
(4) any evidence that should be
preserved;
(5) evidence of the
client's competence to stand trial and/or mental state at the time of the
offense.
(6) the client's ties to
the community, including the length of time he or she has lived at the current
and former addresses, family relationships, immigration status (if applicable),
employment record and history;
(7)
the client's physical and mental health, educational and armed services
records;
(8) the client's immediate
medical needs;
(9) the client's
past criminal record, if any, including arrests and convictions for adult and
juvenile offenses and prior record of court appearances or failure to appear in
court; defense counsel should also determine whether the client has any pending
charges and also whether the client is on probation or parole and the client's
past or present performance under supervision;
(10) the ability of the client to meet any
financial conditions of release;
(11) the names of individuals or other
sources that counsel can contact to verify the information provided by the
client; counsel should obtain the permission of the client before contacting
these individuals.
5. Disposition of the Case
A. Defense counsel should advise the client
with complete candor concerning all aspects of the case, including a candid
estimate of the probable outcome.
B. Defense counsel should not intentionally
understate or overstate the risks, hazards or prospects of the case to exert
undue influence on the client's decision as to his/her plea(s).
6. Advice and Service on
Anticipated Unlawful Conduct
A. Defense
counsel should not counsel a client in or knowingly assist a client to engage
in conduct which defense counsel knows to be illegal or fraudulent, but defense
counsel may discuss the legal consequences of any proposed course of conduct
with a client.
7. Duty
to Keep Client Informed
A. Defense counsel
should maintain regular contact with the client and should keep the client
informed of the progress of the case, including:
(1) the importance of maintaining contact
with defense counsel and the need to notify defense counsel of any change of
address;
(2) the names and contact
information regarding defense counsel and staff assisting with the
case;
(3) any court dates and
significant developments in the case.
B. Defense counsel should keep the client
informed of any developments in the case and the progress of the preparation of
the defense, and provide sufficient information to permit intelligent
participation in decision making by the client.
C. Defense counsel should comply with
reasonable requests for information from the client and reply to client
correspondence and telephone calls.
8. Preparation for Bail Hearing
A. If identification may be an issue, defense
counsel should be aware of, and consider preventing, any identification
opportunities for prosecution witnesses that may arise at
arraignment.
B. If the client is
detained, the focus of the initial interview and investigation will be to
obtain information relevant to the determination of pretrial conditions of
release. Such information should generally include:
(1) client's residence and length of time at
that residence;
(2) family (names,
addresses and phone numbers);
(3)
health (mental and physical) and employment background;
(4) explanation of any court defaults and any
other information on the record;
(5) probation/parole status;
(6) possible sources of bail money;
(7) the general circumstances of the alleged
offense and/or arrest, including, where relevant, any identification procedures
that occurred.
Such information should be verified whenever possible.
9. Bail or
Detention Hearing
A. Defense counsel has an
obligation to vigorously attempt to secure the pretrial release of the client
under conditions most desirable to the client. While favorable release
conditions are the principal goal of the hearing, defense counsel should also
be alert to all opportunities for obtaining discovery.
B. Defense counsel's argument to the court
should include the client's ties to the community and other factors that
support a conclusion that the client, if released, will return for future court
appearances. The client should not, except under the most extraordinary
circumstances, speak or testify at a bail hearing. Although comments on the
strength and quality of the case are appropriate and reference may be made to
the general nature of the anticipated defense, the specific elements of the
client's defense should not be revealed at the arraignment or bail
hearing.
C. Defense counsel should
be prepared to address the special issues of "dangerousness" that are the focus
of the hearings, and, where appropriate and possible, be ready to present
"proffers" that address those issues.
D. Defense counsel should consider advocating
for reasonable conditions of release or recognizance pursuant to pretrial
probation, such as electronic monitoring, "stay away" orders, curfews,
surrender of passports or licenses (motor vehicle or firearms), etc., in
addition to monetary sureties. If the client wishes for defense counsel to
advocate for conditions of release that may not be reasonable then counsel must
do their best to explain the risks and or benefits of doing so to the
client.
E. Where the client is not
able to obtain release under the conditions set by the court, defense counsel
should advise the client of his/her right to appeal and the advantages and
disadvantages of doing so. Where appropriate, defense counsel should facilitate
the bail appeal procedure, including pressing for the opportunity to be heard
on the same day and be prepared to represent the client at the
hearing.
F. Where the client is
incarcerated and unable to obtain pretrial release, defense counsel should
alert the court and the sheriff to any special needs of the client, e.g.,
medical problems, security needs, and request the court to direct the
appropriate officials to take steps to meet such special needs.
G. Defense counsel should be familiar with
the law governing the prosecution's power to require a defendant to provide
non-testimonial evidence (such as handwriting exemplars and physical
specimens), the circumstances in which a defendant may refuse to do so, the
extent to which counsel may participate in the proceedings, and the record of
the proceedings required to be maintained.