Client Behavior

What Should I Be Doing While I Wait For My Attorney To Build My Defense? How Can I Be A Good Client?

One of the first things I tell a client is to stop the bleeding. What I mean by that is that charges have been filed, the case is going to be presented in the court or already has, so this is the time to compose themselves. The damage, so to speak, has been done. Do not do anything to make the matter worse. For example, I’ve had instances where people get a second arrest for a DWI within a week or two of their initial alcohol-related arrest. It is unusual, but it does happen. Or, if it’s some sort of assault or domestic violence matter, they’re told to stay away from the person (Temporary Order of Protection (TOP)), and yet they just can’t seem to help themselves and they end up communicating in some fashion. It only makes the original matter worse and generates new charges.

The best thing for a client to do is try to get back to their normal routine; i.e., go to work, school, stay out of trouble, and communicate with your attorney. We will then have a conversation about gathering the information which will be helpful to the defense case.

Often, in a DWI matter, I like to get people in the process of getting an alcohol evaluation as soon as possible. Every alcohol-related offense is going to result in an application by the prosecution at court to have the defendant evaluated by a certified agency, known as TASC, to determine whether a defendant needs an alcohol or a controlled substance abuse treatment. But, if you wait until you’re in court to get that ball rolling, you just delay the case. You generally would have to wait a few weeks for a screening to determine whether or not you need to have a further evaluation. Inevitably, that’ll lead to a referral for an evaluation at still a later date. So, you are simply being proactive for your case. And, it’s a good way to demonstrate responsibility and show they took initiative by having the evaluation done first.

Contacting your attorney when you have questions is also something that you should do instead of consulting with friends and family members who have little or no experience with the criminal process. It is best to avoid those conversations entirely. Despite their lack of knowledge and experience, its natural for friends and family to want to involve themselves, for better or worse. They tend to want to give them whatever information they have whether it is to elevate the defendant’s expectations and feel better about the case or to tell them all of the things they’ve heard that will make it a more challenging process – where somebody had all these terrible legal consequences occur, or someone who they knew walked away scot-free. Either images aren’t really helpful; they’re harmful because they may not be realistic. If you have an attorney, call them with your questions. Your attorney will give you the straight scoop on your case. They’ll tell you where you stand at any given point in time and you can also have a conversation about where they realistically think it’s going and your options.

What Information Is Critical To Share With My Criminal Defense Attorney At Each And Every Meeting Especially From The Beginning?

It is vitally important to share everything in relation to your case with your defense attorney. Some people think that it’s their role to tell the attorney only what they think the attorney wants to hear or should hear. That’s not how it works best. I prefer to hear everything that happened, exactly as it happened. I tell clients that I can always work with the truth, but I can’t work with misleading information because it is a detriment to the case. If I know what really happened and not the sanitized version, we will both be beneficiaries of the truth. I do not want to walk into court and get sandbagged; e.g., if someone tells me that they have never been arrested, never spoke to a certain person, or never appeared at a certain place, and the prosecution has evidence or video footage that directly contradicts the person – our credibility may take a hit and can hurt a case in the long run.

You hired a lawyer. The attorney knows when and when not to speak. No one has to say anything incriminating against their case. Even if the person did everything that they are accused of we have the right to present and develop our theory of the defense. It does not mean fabricating what happened. It just means presenting the case in the best light. That may ultimately involve a defendant not taking the stand or even saying anything at all. We may be able to parse through two opposing points of view with what the defendant says occurred and what the complainant claims occurred and find some common ground, which would allow for a reduced plea disposition in a case. These are decisions that should be made by the attorney who has complete information and experience in their possession.

Your attorney has the distinct advantage of knowing the full picture having read the statement of the complainant, conversations with the prosecution and the court, and most importantly, the discussion with the defendant in confidence and hearing what happened first-hand. So we get to compile and compare all information. The prosecution does not get such a luxury. They cannot speak to the defendant unless they take the stand at a hearing or trial. They don’t have that last piece of the puzzle which the defense attorney does. Consequently, we are in the best position to decide what to say and what not to say in any given case.

Is My Medical History Relevant In My Criminal Case? Can The Prosecutor Access This Information As Well?

Your medical history is a potential factor and should be shared with your attorney from the outset. Your conversations with the attorney are confidential and cannot be disclosed. You should feel free and comfortable to tell your attorney anything. In that vein, you should choose a lawyer who makes you feel comfortable enough to share your personal information with since it may be helpful to your defense.

Be aware that there are time frames on giving required notice of certain defenses. For example, psychiatric defenses require special notice to be served upon the People. We do not have to divulge the full details of the defense, but a summary of it or physician’s report, and has to be filed within a certain period of time to give the prosecution a heads-up that it is a potential issue in the case.

If you have some other medical condition, it is important to share that with your attorney, as well. I have had cases where physical conditions or limitations have played significant roles in our defenses. For instance, a sleep disorder can cause an accident in which alcohol was involved but nonetheless were two distinguishable factors. Certain medical vulnerabilities that could exacerbate the effects of alcohol – dexterity during field sobriety tests. A situation where someone has taken a prescribed medication which has an interaction with the operation of a motor vehicle may explain why someone seemed inebriated in a case where there was no breathalyzer test administered (so, no BAC and just observations of presumed impairment). Or, in cases where there was a breathalyzer, it could be something that may have interacted with the person that potentially magnified the blood alcohol content on the test. All this is meant to show how all medial history is potentially relevant and helpful to your defense.

Remember, your medical history is privileged. Only what you want to be disclosed, if anything, can be disclosed and nothing more. A caveat though; once the defense formally puts in the defendant’s medical history, it may open the door for a fuller exploration of the person’s larger medical history. But, that decision on evidence is between the defendant and their attorney as to what should be made available to the court and what should be kept confidential.

In some instances, however, the prosecution can access specific parts of a person’s medical history without consent. For example, I’ve seen some cases in the last few years where a chemical breath or blood test may have been refused by the defendant in a DWI matter involving an auto accident, but blood was drawn as part of the medical treatment at the emergency room. As a result, the prosecution may seek a search warrant from the court to obtain the blood test results from the hospital. They can ask for it, but that does not mean their request will be granted. Again, as part of the medical history and facts, knowledge of it must be imparted to defense counsel from the start.

Is It Helpful At This Stage To Gather Information, Letters, Or Character Witnesses? And, If So, What Is The Best Approach To Do So?

It is helpful to gather information, character reference letters, and witnesses. I like to discuss this part of the initial consultation. We discuss the client’s background, what they do, did they go to school, their line of work, and if they attend church or religious group. I get a fuller picture of a person’s life because I would like to know who I am representing. Plus, I want to know if I can use some of that information favorably in the case. You don’t have to act right away to get the information, but during the course of the case, I will ask them to gather character reference letters, perhaps from their employer if they already know about the matter or a previous employer.

I am reluctant to ask them for one from their current employer because I don’t believe that’s something that they need to be made aware of. That is unless the defendant is contractually or statutorily obligated to notify them, but that is handled on a case-by-case basis. Other possible sources for these letters mentioned already are past employers, colleagues, friends, religious organizations, or volunteer groups that they may already interact with. The defendant should consider how they’re going to formulate the list of persons they can approach to ask for a character reference letter.

Now, the person that is asked to write a character letter doesn’t always have to know what it’s for. We can ask for a general character reference letter. The letter should not discuss the criminal case at all and does not have to be about how this person would never do anything wrong. It’s just what their interaction has been like with the client, and what their experience and impression of them is – is he or she a responsible person? Are they helpful? Are they generally an honest person and willing to work in an employment setting responsibly? Gathering all this information takes time. It’s not fair to ask the client to get it all in a week. I like to give them a heads-up, and so, they have several weeks to get it done.

What Should Someone Facing Criminal Proceedings Expect At Each Court Appearance?

Once the defendant has been arraigned, which is their first appearance in court, and when the prosecution provides copies of the accusatory instruments (charges and supporting documentation) to the defendant or counsel. If it is a misdemeanor or felony offense, the defendant must be represented by an attorney. If they are employed, they are responsible to retain their own counsel. If they are not employed, they may qualify for indigent counsel to be assigned by the court. Either way, all future court appearances will be with both the defendant and their counsel (unless other arrangements are made). It’s the attorney that does virtually all of the talking while in the courtroom on behalf of the defendant. There really is no situation where an accused will be interrogated once they hire an attorney – not by the police, the prosecution, nor the judge. If at any time in the courtroom the attorney is not with the defendant and they are approached by someone asking questions, all inquiries should quite easily be deflected to their attorney. There is no need for an accused party to discuss their case with anyone else. Simply say something like “we’re working on it, thanks.”

Historically, the defendant and counsel would appear in court before the judge on the case simply to give them a status update. However, the courts are less inclined to continue the older process where a courtroom full of people would come in to report their progress while more case work proceeds outside of the courtroom. In the immediate future, I anticipate less court conferences and more work behind the scene with the prosecution toward a possible resolution of the matter.

After the arraignment, the case proceeds to the discovery phase. Discovery is where there is an exchange of information between defense counsel and the prosecution. The laws are very specific in terms of what must be turned over quickly by law enforcement to the prosecution, and in turn, from the People to the defense counsel, and vice versa. Discovery basically is all information and materials related to the case. That takes some time to compile and time to present it – but there are strict Criminal Procedure Law (CPL) time frames, first for the prosecution, and then from the defense. All the while, the case is still proceeding along in the court system.

The court appearances that occur during that phase are basically status appearances. The attorney is present before the court, they see the defendant has not left the jurisdiction, some issues are raised and addressed, and the defendant gets to know what is happening and what still needs to be done. Afterward, the case is adjourned (put off to a future date) usually two or three weeks later for a compliance update and to proceed along toward the common goal of having the case ready to dispose of either by plea or trial date.

How Do You Advise Clients To Behave And Conduct Him Or Herself At Each Court Appearance? What Is Proper Courtroom Etiquette?

It’s important to be timely, so both the client and attorney should appear early in court. The court cases are generally called for conferences and before the judge on the bench in the order that the attorneys sign in. I am typically one of the lawyers that arrive an hour or more early because it allows for time to review the files, speak with the client, and conference the case with the prosecution and the judge in Chambers. We go over what’s expected to occur that day at that court appearance and what’s happened since last time we spoke or the last court appearance.

In terms of clothing attire, for adults, I recommend dressing comfortably, but respectfully. You don’t have to wear a dress or suit and tie, if you don’t ordinarily wear them. For younger offenders, I recommend for them to dress up. When a young person appears dressed up (even awkwardly) it demonstrates they are putting out the effort to show extra respect for the Court. And, more times than not, the court takes notice of that. It shows a level of maturity they may not have had at the time of the arrest, but that they are now learning their lesson.

Lastly, do not speak to anybody in the courtroom – only your attorney. Don’t chat with another defendant about your case. Every case is different, and they are all distinctly nuanced. There is no black letter law which applies to every case in terms of its defense, so you are likely to receive misinformation or inadvertently say something harmful to your own case. As a friend once told me, before you speak, you own your words. After you speak, they own you!

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