All Right, I'm a Lawyer: What Do I Ask?
December 28, 2010 7:18 AM   Subscribe

What specifically happens between a lawyer and his client once the client commits a crime?

I have always been curious about the protocol (if any) followed by a lawyer once his or her client is arrested or under suspicion for a crime. How much does it depend on the individual lawyer or firm?

What kinds of questions does the lawyer ask? How does he or she make sure to get all of the relevant details? How much time does this take? What instructions are given to the client?

If the lawyer hears about something that may negatively impact their case ("I stashed the bloody towel in a neighbor's shed, the police haven't looked there yet") what is their obligation in that situation?

I understand that there may not be any one general way but am hoping to hear how real-life is different than TV.
posted by amicamentis to Law & Government (15 answers total) 8 users marked this as a favorite
If the lawyer hears about something that may negatively impact their case ("I stashed the bloody towel in a neighbor's shed, the police haven't looked there yet") what is their obligation in that situation?

Attorneys have to comply with codes of ethics or risk losing their license to practice. Most states' rules are similar to the ABA Model Rules.

Rule 1.6 might be of interest: a lawyer generally must keep the client's information secret unless the client gives consent, but exceptions include "to prevent reasonably certain death or substantial bodily harm" and "to prevent the client from committing a crime or fraud." Note that there is no exception to reveal past crimes.

Also, Rule 3.3 generally prevents the lawyer from lying to the court or intentionally putting a witness on the stand who intends to lie.

So, there is probably no obligation to tell anyone about the hidden bloody towel.

DISCLAIMER: I don't practice criminal law and the ethics course I had that covered this was a long time ago.
posted by exogenous at 8:02 AM on December 28, 2010

I’ve been a private defense attorney and public appellate defender in Cook County, Illinois. In real life in Cook County you're investigated, arrested, arraigned and sit through your 30-second bond hearing without ever having actually spoken to (or in many cases been in the same room with) an attorney who represents you. If you don’t have a private attorney already on retainer—and few people have a criminal attorney already picked out—you don’t get one until the judge appoints one. Which is after you’ve been arrested, arraigned and had a bond hearing. This is true in most states. The “if you cannot afford an attorney, one will be appointed to assist you at no cost to you” does not happen until a judge has determined at a hearing (usually not the bond hearing, either) that you cannot afford to fund your own defense. If you do have an attorney on retainer, you likely will still not see him or her until the bond hearing—assuming you can get in touch and he or she can send someone over to represent you at the bond hearing. In Cook County, it’s a rapid turn-around from arrest to arraignment to bond hearing. You are not constitutionally guaranteed representation at that stage of the proceeding.

So, to backtrack. Crime has happened (assume a felony for purposes of this example) and you've been investigated--which means you've been interviewed, probably more than once--and now you’ve been arrested. You've been formally charged and put into jail. If you're lucky, in Cook County First Defense Legal Aid (a private volunteer-staffed organization that provides attorneys during custodial interrogations, among other pre-counsel-appointment-stage events), were able to call First Defense and First Defense had someone available to come help. The police are not required to give you any particular amount of time alone with your attorney. Nor is the “you can’t hold me without charging me and you don’t have enough to charge me” threat you see on the TV particularly effective. If the police believe they had enough to do a long form custodial interrogation, so you were in a position to be allowed to call an attorney, whichever State’s Attorney is on midnight felony review duty will sign off on the charges.

Now you’re in jail. Although your attorney cannot lawfully be prevented from speaking to you, the times of day the attorney will be permitted to speak to you—as well as the physical limitation of the jail—will severely constrain any ability you have to truly converse with your attorney. Assuming a public defender, you likely will speak to your attorney only in the few minutes before and after any court appearance. It will be in a public corridor, or a crowded holding cell. Because if you have a public defender, you were likely not released on bond. Assuming a private attorney, you may or may not have been released on bond--none of my clients were (I was a private attorney working for an organization which only represented indigent defendants). You will likely have more opportunities to speak with a private defense attorney. You’ll likely tell your side of the story to your attorney repeatedly and he or she won’t believe you. Even the defense attorneys who believe their clients did not do what the police said in the manner the police said they did it, don’t believe the stories their clients tell.

At some point, your attorney will tell you the plea offer. If you have a public defender, you will receive the plea offer at the moment your case is called. You will be given a few moments to step over to counsel table (in a small crowded courtroom) to discuss it with your public defender. He or she will tell you to take it. The Judge will ask the state’s attorney to recite the facts as he or she would prove them at trial. The Judge will then tell you that if you agree to plead to those facts as recited you are given up various rights and ask if you agree to give up those rights. The judge will then ask if you have been promised anything—other than a particular sentence—in exchange for agreeing to the state’s case and waiving your rights. The judge will then ask if you have been coerced into giving up your rights and agreeing to plead. If you mention that you haven’t had time to think about it, the judge will either be annoyed and tell you that that isn’t coercion or will be gentle and tell you that that isn’t coercion. The judge will then ask you if you intend to plead guilty. If you say “yes, but I didn’t do it” or “yes, but that isn’t how it happened”, the judge will almost certainly get annoyed. You have agreed to plead guilty, you do not get to contradict the facts as the state said it would prove them. You do not get to plead guilty while saying you’re innocent. Even if everyone in the room knows you are pleading guilty because you’re going to get drug treatment or time-served or get to go home and not because you actually did it, you can’t put that on the record. It’s not allowed. Then the plea is not knowing and voluntary. In most cases I saw with defendants who had never been in court before, this part took the longest, but eventually, the defendant understood that in order to get to the next step, he had to stop saying “yes, but” and so he did.

In the odd event that you reject the plea offer, you will go back to jail for a very long time while the trial happens.

As of 2007 (the last year for which I have ready statistics), Cook County's primary criminal courthouse (80% of the county's criminal caseload) has 36 judges, each of whom hear over 28,000 felony cases per year (I don't have the misdemeanor numbers). We have between 900-1200 State's Attorneys at any given time and under 600 public defenders. Because of the way Illinois structures its Public Defense (only capital cases are funded by the state), and because of the way case loads are counted, it's really difficult to say what percentage of cases in Cook County are handled by public defenders as opposed to private counsel. State's Attorney's office says it's 53%; others say it's 75%. The Public Defender says it's at least 23,000 felony defendants per year.
posted by crush-onastick at 8:08 AM on December 28, 2010 [37 favorites]

So, assuming you elect to go to a trial that would be the only likely scenario in which you tell your attorney something incriminating.

Now, the state—in all cases in the US—is generally obligated to share any exculpatory (that is “tending to show innocence”) evidence in its possession. It is also generally obligated to share the basic evidence it will use to make its case against you. In Cook County, that translates to “official” police reports. “Official” police reports are the reports the police make after that have made their actual reports of crime scenes, witness interviews, and suspect interviews. They will generally include a name, address where the person was found, and a few sentences summarizing what they said happened. Any other notes pertaining to these interviews are not shared. Any lists of persons interviewed who will not be relied on in the case-in-chief are not shared; any lists of persons who were also (possibly) present at the crime scene are not be shared. Names of other potential suspects are not shared.

This information is the information your attorney wants from you. If your attorney is a public defender, he or she will have no real time to get from you and no resources or time to find and talk to those people anyway. If your attorney is a private attorney, maybe he or she will have time to find and talk to those people. It’s unlikely. Assuming that the attorney does talk to you or a witness and one of those people says “I saw him put the bloody towel in the shed.” The defense attorney has no obligation to tell the state’s attorney. His or her obligation to the court and to justice is to prevent you from lying about it on the stand and his or her obligation to you is to counsel you as to the strengths and weaknesses of the case against you, so you can adequately weigh any plea offer made to you. If the witness or you says “I hid the shotgun in the stairwell by the playground”, the defense attorney has an obligation to inform the police so that they may secure the public from the harm of a loaded shotgun in a stairwell by a playground.
posted by crush-onastick at 8:18 AM on December 28, 2010 [5 favorites]

You might also find this thread to be useful and informative. I did.
posted by DWRoelands at 8:30 AM on December 28, 2010

Response by poster: Great answers so far, thanks! In terms of the fact that a lawyer cannot allow his or her client to perjure: does that affect the questions that they ask their client? Do they try to get around that?
posted by amicamentis at 8:44 AM on December 28, 2010

Speaking from a high-ish end federal "white collar crime" perspective- and occasional other crimes - it was less tell me what actually happened and more "tell me what they (the accusers/govt) will say happened" and "tell me what you said and who you said it to". You have to work with what's been said already, and with what information you know that the government has.

I see your follow up on preview - that was one reason why the questions above are phrased that way.

We also got a decent amount of background information about the person at the beginning, because when it came to sentencing time we would write up a whole document explaining why the person should get a lesser sentence (usually with a bunch of letters from the person's friends and associates), and if there were any mitigating factors we would want to keep those in mind. Also, there would be a pre-sentence report at some point, and we would want to get an idea of what we would be working with at that point.

There would be a few in person meetings with the client, but not all that many, and I don't recall ever having a plea deal offered Law & Order style with defense and prosecution and client in the same room - we only ever let the client in the same room with a prosecutor if we had already gotten a signed plea deal and the client was cooperating.

Some clients would call a fair amount, some not at all, but most of what we did didn't require a ton of actual contact with the client.

For clients that were in prison, I remember being surprised at first that you can't just go see them, there were specific times and days and sometimes you had to fax over a request and go through some paperwork. You can't just show up and say I'm Mr. X's attorney and get in.

The one instruction that never varied was to tell them not to talk about their alleged crime or literally anything having to do with it. They could give out our name and contact info but we recommended they say no more - even to best friends or priests.
posted by mrs. taters at 8:57 AM on December 28, 2010 [2 favorites]

In my experience, knowing or thinking that your client would lie--to you, to the police, or in court--did not change the questions you would ask your client. At most, it affected your decisions about which witnesses to present. Aside from the fast food justice aspect of it, the single most striking part of criminal defense work, in my experience, was how utterly banal it is. Few crimes are actual mysteries. Most are not motivated by anything interesting. When you do get a crime that is an actual mystery, in the end, no-one actually knew what happened. As an attorney, you often have no real reason not to ask questions which might resolve the case; as a human being, you really want to know. Certainly, you tell your client not to talk to anyone about what happened and definitely, you ask him if there is anyone you should talk to that might help his case. And if he did it, you want to be able to best advise him on the deal. You want to know what services you can get him in lieu of prison time.

I had two homicides which--although the cases are long over--remain completely unresolved in my mind. I wake up, turning the pieces over in my head, but I know I'll never know. I have a number of cases which I find hard to accept the State's version of, but found my client's version not particularly plausible either. Think about the best Rashomon tv-show-episode you ever saw (or, for that matter, think of Rashomon. That's really the truth of criminal defense investigation when you are dealing with county court level felonies: assaults, unlawful use, manslaughter. As the defense attorney, you really lack the resources to figure it out. The cops lack the resources to really piece it all together. Everyone just accepts the most likely scenario, even if there are huge contradictions in the stories, or they just arrest the last guy standing.
posted by crush-onastick at 9:13 AM on December 28, 2010 [3 favorites]

Best answer: I have always been curious about the protocol (if any) followed by a lawyer once his or her client is arrested or under suspicion for a crime. How much does it depend on the individual lawyer or firm?

I think it is very lawyer-dependent. I am a criminal defense attorney, and lawyers seem to be all over the map in terms of how they operate.

Some lawyers are very fussy about "never asking the client whether they did it." To me, that's silly. When someone comes into my office and hires me to defend them, I ask "so tell me what happened." I want to know exactly what the client did (or remembers doing), I want to know whether the client thinks he or she is guilty, etc.

My belief is that the client isn't a judge of whether they are guilty or not. It's up to the jury (or judge in a bench trial) to decide that. So it does not impede my defense in the slightest for me to know exactly what the client says happened or didn't happen.

By and large, issues of whether the lawyer is suborning perjury by putting the client on the stand are mainly academic, and not real-life issues worthy of my concern ... I've suspected before that people lie to their lawyers in the office, and for various reasons will tell the truth as the case proceeds and the lawyer alleviates their fears about the legal consequences about what the person actually did. So if the client gives one story in private, and another story on the stand, I really do not know which one is true so I'm not going to fret about it very much. Let the jury decide.

I may interview a client for as little as a minute on a simple misdemeanor (lots of times my clients never set foot in my office, but call the office and ask me to meet them in court, so my consultation with those clients is on the fly). I can hear a thirty second nutshell summary of what is going on and sometimes get the case dismissed or negotiated very favorably. I may spend hours interviewing the client on a more serious case. On a murder case, I will probably interview the client for many hours over numerous visits.

I have a very casual, friendly relationship with the vast majority of my clients. It's always funny for new staff members to see nice, friendly folks come into my office, see how warmly we greet them, and then find out they are charged with attempted murder, aggravated kidnapping, rape, etc.

If the lawyer hears about something that may negatively impact their case ("I stashed the bloody towel in a neighbor's shed, the police haven't looked there yet") what is their obligation in that situation?

Tell the client to keep his damn mouth shut and hope the police don't think to look there.

crush-onastick: The judge will then ask you if you intend to plead guilty. If you say “yes, but I didn’t do it” or “yes, but that isn’t how it happened”, the judge will almost certainly get annoyed. You have agreed to plead guilty, you do not get to contradict the facts as the state said it would prove them. You do not get to plead guilty while saying you’re innocent.

Have the judges ever heard of a little case called Alford?
posted by jayder at 9:34 AM on December 28, 2010 [3 favorites]

I have a number of cases which I find hard to accept the State's version of, but found my client's version not particularly plausible either.

Yes, I have a number of these cases, too. I still puzzle over some of them, and wish I really knew what happened.
posted by jayder at 9:38 AM on December 28, 2010

Yes, they know Alford, but they still don't like you to do it. When I say "you don't get to plead guilty and insist you didn't do it" I meant "the judges don't want you to plead guilty while saying you're innocent on the record." I did not mean to imply there was a legal or Constitutional issue with entering a plea while maintaining your innocence. It's a Cook County judge culture thing. It seems all of plea colloquies I read as an appellate defender included a judge admonishing a defendant for trying to say he was innocent while pleading.

I don't know why, honestly. Maybe it's Area 2/John Burge fallout. Maybe it's because we have state-funded automatically-appointed appellate defender office, even for pleas.
posted by crush-onastick at 10:01 AM on December 28, 2010

I'm fairly new to the world of criminal defense, but I've practiced in two different jurisdictions(Maryland and DC). In all cases, I was handling either misdemeanors or minor felonies. Note that in Maryland the distinction between misdemeanors and felonies is not actually as important as the difference between District and Circuit court. Generally, District Court (the lower level court) handles misdemeanors, but there are exceptions. What I'll be describing is District Court.

In Maryland, you're arrested and brought in front of a quasi-judge called a comissioner who sets your initial bond. If you can't pay the initial bond(most people can't), you go in front of a judge. This usually happens the next day, unless you get picked up at like 5:00 in the morning. (Tip: if you're going to turn yourself in on a warrant in Maryland do it really, really early in the morning).

At the bond hearing a lawyer from the Public Defender's Office will "represent" you. I put that in scare quotes because it's really, really shoddy representation. (Note: I love Public Defenders, they're great, dedicated lawyers, it's the system that's screwing people over here, not the PDs) The defendants appear on a TV screen, the PD has some information from an interview with the defendant on a sheet of paper, and can make an argument about bail, but it rarely matters. The judge then sets the bond and give you a court date(usually about a month later). If you're released, you have to go the PD's office to sign up. If you're held, then you sign up at the jail.

The first real meeting with your lawyer will happen in that month between arraignment and your court date. In Maryland District Court, that court date is officially a "trial date," but it's really a date to do whatever you're going to do be it a trial, a plea, or whatever. I usually have a half an hour to an hour to meet with my clients, although plenty of them meet with me outside the courtroom for just a few minutes.

The kind of questions I ask usually depends on how much discovery I have. If I don't have much, then I ask a lot more questions. For example, in a case where my client was not obviously caught red-handed, I need to know if he made a statement. In a shoplifting case, I want to know if they showed him a video or if they told the client how they saw them shoplifting. Other than that, I tend to ask my clients what happened. Like Jayder, I tend to see the ethical issues as being fairly academic. People lie to me all the time, people change their stories with me all the time. I have no way of knowing what, if anything my client is telling me is true. If I need them to testify, I call them and I ask the questions that will help us.

The other reason that I need to know what happened is that most of my cases are going to be pleas not trials. I need to be able to explain to the judge what happened so that I can explain why it will never happen again. If I have no idea what happened from my client's perspective, I can't do that effectively.
posted by Bulgaroktonos at 10:12 AM on December 28, 2010 [3 favorites]

And re-reading, I see that I pretty much did say that. So, I apologize. A guilty plea can be knowing and voluntary even if entered by a defendant who maintains his innocence. The decision to plead is, in many ways, divorced from the question of actual innocence.
posted by crush-onastick at 10:15 AM on December 28, 2010

@crush-onastick: Thanks for that very interesting answer, but are you sure about your numbers... 28000 cases a year times 36 judges over 5.6 million inhabitants means that you get an average of .2 felony cases per inhabiant and year? That seems a little steep.
posted by themel at 12:09 PM on December 28, 2010

Yes, themel, poor proofreading on my part. The County Department, Criminal Division of the Circuit Court of Cook County, hears all felony cases filed in Chicago. Misdemeanors are heard in various divisions. The Central Criminal Courts Building at 26th and California Avenues houses 80% of the Criminal Division's courtrooms are housed. In 2007, the last year for which I have data at my fingertips, the 36 Criminal Division judges at 26th and California heard more than 28,000 felony cases. Just for fun, here's a tidbit, 1993 judicial caseload study (looking at federal courts) appearing in the American University Law Review concluded that, in order to handle 29,307 cases each year a court would need 65 judges.
posted by crush-onastick at 12:33 PM on December 28, 2010 [1 favorite]

I can only answer in regards to how it works in NY, but hereabouts, here's what we have to do if we know a criminal defense client is going to lie on the stand:

1. Check: Do you KNOW your client is going to lie, or do you just THINK your client might lie? If you think they might, but don't really know, you can proceed as usual. However, that's a fine and delicate line, sometimes. There is much more to be said on this subject, but that's the vague gist. Put two lawyers in a room, get three opinions on how to handle that particular thorny concept, and so on.

2. If you know your client intends to lie on the stand, and you have advised them of the repercussions thereof &c &c, and they still insist on testifying (as is their right), you can't ask them questions as you normally would during direct examination as a witness. Instead, once they are on the stand, you are required to simply invite them to testify on their own in the form of a narrative without ongoing questions from you. Every lawyer, clerk, and court officer in the room will know what this means. In theory, jurors generally won't.
posted by Eshkol at 9:04 PM on December 28, 2010

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