The Compleat Lawyer - General Practice, Solo, and Small Firm Division American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1997, Volume 14, No. 1
copyright American Bar Association. All rights reserved.

Criminal Law

BY MATTHEW A. MALONEY

Matthew A. Maloney practices at Pierson, Maloney & Rayfield in Princeton, Illinois. He is the Advocacy Vice Chair of the Criminal Law Committee of the ABA General Practice, Solo and Small Firm Division.

A friend of a friend pulls you aside at a wedding reception and says, "I hear you're a lawyer. My niece was arrested yesterday for possession of some kind of drug. They didn't read the Miranda warnings to her. Can the police do that? She's never been in trouble before. Can you help her with this?"

You've spend the past 18 years representing municipalities, doing probate work, and developing a substantial real estate business. You took on a few criminal cases when you first started practicing, but that was a long time ago and you don't remember too much. Perhaps you give some general advice and the name of a good criminal lawyer; or perhaps, envisioning yourself as the next Clarence Darrow, you agree to take on the case. What do you need to know?

The Players
The prosecutor is usually a full-time professional. His or her staff does nothing else but try cases. Many multi-lawyer prosecutors' offices delegate responsibility by subject area (one lawyer does sex cases, another does traffic cases). Talk to the local prosecutor and find out who does what. It will save a lot of time if you start by talking to the right person.

Trial Pitfalls

Watch out for the following traps and pitfalls:

  1. The rules of evidence for criminal trials are not the same as in a civil setting. Impeachment, exceptions to the hearsay rule, and other evidence have different implications.
  2. If you fail to follow the statutory procedural rules, you waive all of these issues for appellate review--except your own ineptitude.
  3. Don't allow the prosecutor to use inflammatory language or argue facts not directly in evidence. These may be the turning point in a close case on appeal.
  4. Look for unperfected impeachment. The prosecutor asks your witness: "Didn't you tell Officer Madsen that you had no recollection of seeing the defendant on the day of the crime?" Your witness answers, "No." The suggestion, based on that response, is that the witness is either lying or changing an earlier statement. The prosecutor then fails to call Officer Madsen to testify to the earlier statement. The chances of this happening increase in direct proportion to the length of the trial or the number of witnesses called. In most jurisdictions, this failure to perfect impeachment provides a basis for the testimony to be stricken on your motion. In a close case, it might prove to be grounds for a mistrial.
  5. Keep a separate list of all adverse pre-trial and trial rulings. You can use this as your outline for your post-trial motion if you lose.
  6. Judges don't care if a defendant fails to testify, but jurors do. Make sure that your client is admonished, on the record, of his right to testify, or you will hear, "I wanted to tell my side of the story and my lawyer wouldn't let me."
  7. File a pre-trial motion in limine regarding evidence that you have doubts about. You may get lucky and get an advance ruling that will allow you to better prepare your case.
  8. Don't make promises to a judge or jury that you cannot keep.
Most prosecutors will tell you if plea negotiation is done by the individual staff lawyer at his or her sole discretion or if it is done only with the boss' approval or by predetermined office policy. If you don't know what the boundaries are, you'll be wasting your time. Ask the judge who regularly hears these cases to tell you about typical fines or jail recommendations. Spend a day in traffic, misdemeanor, or felony court and see what goes on.

The Field
The volume of cases filed is enormous, and the government mandates that cases proceed within fixed time limits, so be prepared to work in a fast-paced environment. Most judges are extremely conscientious about moving cases along; they know that everything cannot be tried.

If you decide that you are going to do this type of work, don't be a "bonehead" and try to convince the Players that all of your clients are innocent. They're not. The Players know this. The sooner you learn how to figure out what is litigable and what is not, the better off you and your clients will be. If you tie up a judge's call with unwinnable cases, the judge and the prosecutor will hate you.

The Client
Most people know when they are in trouble. Unfortunately, a vast number of clients either believe that (1) their problem is not as bad as it seems, or (2) their problem is much worse than it is. Regardless of how much information a client provides you at your first meeting, you will not be in a position to render any advice until you see all of the prosecution's case. Be honest and tactful when you tell this to the client.

Some people balk when a fee is quoted and often say, "Why should I pay you that much if you can't even tell me what's going to happen?" You need to be patient and explain to the client that if you could guess results with less than all of the information, you'd be a fortune teller, not a lawyer. You should always tell clients what the minimum and maximum penalties are upon being convicted, and the time frame for bringing the case to a conclusion.

If you determine that the client is guilty, be forthright and tell the client. If he doesn't find out before a trial or guilty plea, he will find out during the process or soon afterward. Tell the client that his money and your time will be better spent in preparing for a contested sentencing hearing after a guilty plea than in trying to win an unwinnable case.

You will no doubt meet the client who tells the truth but fails to tell you the entire story. When a prospective client tells you that he has been arrested before or has been convicted before but cannot tell you when or what it was for, he is probably lying. At your first conference, you must convey the concept that if they are less than truthful with you, you will withdraw from their case.

The Family
Whether or not your client is in custody, family members often pay attorney fees. Relatives often conclude that since they are paying the fee, they should be involved in case management and disposition. This may be an acceptable concept in minor cases but could cause problems in more serious matters. The general public has some concept of the attorney-client privilege, although many mistakenly believe that it is a hollow statement.

If the police and prosecutor believe that a sibling or a spouse may have some direct knowledge of your client's activities, make sure that there are no three-party discussions (you, your client, and the sibling or spouse) about the case. Otherwise, you might run headfirst into a waiver of privilege issue. It's easier to avoid the problem than confront it later on if a spouse or other family member is served with a subpoena to testify before a grand jury or at trial.

The Rules
You can't explain to your client the difference between a preliminary hearing and the grand jury if you don't know. Each jurisdiction has a specific code of criminal procedure that details the required pre-trial, trial, and post-trial requirements. Most procedural statutes are direct and simple, although interpretation through case law is always in some state of flux.

Do lawyers or judges select juries? Who prepares jury instructions? What days of the week do trials start? How many hours a day can lawyers and clients expect to spend in court? How do witnesses know when to appear? A short visit with a judge, prosecutor, or fellow lawyer should answer most of these questions.

Make sure that you familiarize yourself with the rules as they apply to appellate procedure. If you fail to do something either before, during, or after trial to preserve an issue for appellate review, you might be subject to litigation and discipline.

The Fee
You cannot try a jury case for $200. In fact, you cannot do anything for $200 unless you are independently wealthy or have no office overhead. A few simple rules should help you earn a profit:

  1. Get your entire fee up front. Receivables are tough to collect if a client is in prison.
  2. Have your fee agreement in writing with a specific description of what you propose to do. An appeal is part of a case. Make sure that your fee structure either includes or excludes this possibility. You should have a written contract about multiple appeals and multiple trials.
  3. Even if you're a good estimator, your time projection will be exceeded in a number of cases. Make sure that your fees cover these possibilities. Some clients will pay more and some will pay less. It should all even out for you in the end.
  4. Don't overcharge. The more people pay, the more they expect. The operative facts of and the law governing the case will not be altered by the size of your fee. Overcharges with bad results are a prime source of complaints to your disciplinary agency.

What to Ask at the Initial Conference
Keep the following broad topic areas in mind at your initial conference:

  1. Can the client read and write?
  2. Does the client have a prior criminal record that will subject him to an enhanced penalty for this offense?
  3. Is the client now on probation or in a deferred prosecution program?
  4. Will a conviction for the charged offense carry a mandatory minimum jail sentence?
  5. Are there collateral consequences of a plea or finding of guilty, i.e., mandatory revocation of a driver's license for possession of a small amount of drugs in a motor vehicle?
  6. Are there extraordinary fines, fees, or court costs associated with any case disposition?
  7. Who are the witnesses and where do they live--and do any of them have prior criminal records that would subject them to impeachment at trial?
  8. Go to the scene of the crime, preferably with the client. You can't talk about it if you haven't been there.

Don't Bite Off More than You Can Chew
Even if you decide to branch out into criminal law, you must be able to recognize your own personal limitations. Don't be afraid to suggest a referral to another lawyer. You can usually find a lawyer who has a high degree of competence in a narrow area with no more effort than a few phone calls.

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