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What to Do When Your Client Calls from Jail Author(s): Jill Wine-Banks and Carl Nadler Source: ABA Journal, Vol. 71, No. 1 (January 1985), pp. 74-79 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/20757573 . Accessed: 15/06/2014 22:30 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal. http://www.jstor.org This content downloaded from 195.34.79.174 on Sun, 15 Jun 2014 22:30:40 PM All use subject to JSTOR Terms and Conditions

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Page 1: What to Do When Your Client Calls from Jail

What to Do When Your Client Calls from JailAuthor(s): Jill Wine-Banks and Carl NadlerSource: ABA Journal, Vol. 71, No. 1 (January 1985), pp. 74-79Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20757573 .

Accessed: 15/06/2014 22:30

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

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Page 2: What to Do When Your Client Calls from Jail

U

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Page 3: What to Do When Your Client Calls from Jail

CRIMINAL LAW

I rs late at night. The phone rings in the darkness. As you an

swer and try to col

lect yourself, you hear a major client on the phone. His son has just been ar

rested on federal drug charges, and he wants you to get him

out of jail. You really can't

refuse. The problem is that you practice civil law. The closest you ever came to a criminal case was a

traffic ticket.

The civil practitioner's involvement

with criminal law is likely to begin with a call from an established client. Per haps a member of your client's family has a criminal problem, or perhaps his key employee?or entire work force?

has been detained by immigration of ficials, or maybe the client himself has been arrested for drunk driving. These situations require your immediate re

sponse. The defense of a criminal case may be

affected dramatically by the events im mediately following arrest. By following several basic guidelines, you can protect your client's interests until you can con

tact an experienced criminal lawyer.

By Jill Wine-Banks and Carl Nadler

You should first, of course, find out everything the caller knows about the arrest. What is the defendant's name?

When, where and why was he arrested? If the caller knows, who made the arrest and where was the defendant taken? You should then arrange to meet the de

fendant and the caller as soon as possi ble at the police station.

Next call the police station to speak with the defendant. The police may deny that the defendant is there. If you believe he is, ask to speak to the high est-ranking officer there. Obtain the of ficer's names and identification num

bers. The police may not let you speak to the defendant even if he is there. If so, obtain the officer's name and

number and ask him to give your name

Iand telephone num

ber to the defendant so he can call you.

The defendant's

right to make a rea

sonable number of telephone calls fol lowing his arrest is protected in many states by statute.

For a compilation of these statutes, see

ALI, Model Code of Pre-Arraignment Procedures, Appen dix V, at 633 (pro

posed official draft 1975). The accused's right to call counsel also is constitu tionally protected. Miranda v. Arizona, 384 U.S. 436 (1966). See also People v. Nemke, 23, 179 N.E.2d 825 (111. 1962) (confession may be invalid if given after police deny juvenile access to attorney retained by his mother, even if minor did not ask for a lawyer).

The initial phone conversation When you do reach the defendant, tell

him how you became involved in the case. For example, tell him, "Your fa

ther called me." Advise your potential new client that if he desires, you will represent him and will come to the sta tion house immediately. If the client is a minor, however, it is not entirely clear

Illustrations by John Zielinski January 1985 Volume 71 75

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Page 4: What to Do When Your Client Calls from Jail

that you need his permission to repre sent him.

The client may attempt to discuss the case with you right then. Don't let him. You should not discuss the facts of the case with the client on the telephone un less there are exceptional circum

stances. The police may be listening on the line or they may overhear.

There are, however, a few things you should tell your new client in this initial conversation. Advise him clearly and

forcefully to say nothing at all to police, government attorneys, cellmates, re

porters or anyone else. Advise him to

answer no questions until you arrive. It

is insufficient to advise your client not to make a statement. He may interpret "statement" to mean only a formal, written confession.

If your client does make a statement, it may be used as direct evidence of his guilt under Rule 801(D)(2) of the Federal Rules of Evidence or to impeach his tes timony at trial. Anderson v. Charles, 447 U.S. 404 (1980). Even if the police fail to give the defendant adequate Mi randa warnings or interrogate him be fore you arrive, his statement may be used to impeach his testimony at trial, Oregon v. Hass, 420 U.S. 714 (1975), Harris v. New York, 401 U.S. 222 (1971), or admitted under some exception to the Miranda rule. See, for example, New

York v. Quarles, 104 S.Ct. 2626 (1984) (recognizing a "public safety" exception to Miranda). If you convince him to say nothing, his silence can't be used against him. Doyle v. Ohio, 426 U.S. 610 (1976).

Lineups, searches and tests The second thing you should tell your

client in this initial telephone call is to refuse verbally to participate in lineups or other identification procedures until you arrive but not to resist that pro cedure physically. Advise him also to re fuse to submit to any physical examin ation, inspection of his body or other test until you arrive, but not to resist physically.

The legal standards police must meet to conduct these tests vary significantly:

To conduct an extremely intrusive procedure, such as blood sampling, stomach pumping or the surgical extrac tion of evidence, police may be required to: (1) use reasonable methods, (2) have probable cause to believe that evidence will be discovered and (3) obtain a search warrant or have exigent circum

stances justifying their failure to obtain one. Schmerber v. California, 384 U.S.

757 (1966) (blood sampling) and Roc hin v. California, 342 U.S. 165 (1952) (stom

ach pumping). See also 2 Lafave, Search & Seizure ? 5.3 at 322, 325 (1978). If the search procedure is suffi ciently intrusive, painful or dangerous, it

may be prohibited altogether by the Fourth Amendment. See, for example, Lee v. Winston, 1\1 F.2d 888 (4th Cir. 1983), certiorari granted, 52 U.S.L.W.

3756 (No. 83-1334) (surgical extraction of evidence requiring use of general ana sthetic not permitted).

To conduct non-intrusive pro cedures such as fingerprinting, the po lice need only lawful custody of the defendant.

The legal standard varies widely for other tests, including taking hair sam ples, swabbing or scraping parts of the body or obtaining urine samples. Some jurisdictions require police to have only lawful custody to perform these tests.

Others may require probable cause or a warrant for some of the tests.

A defendant may waive his rights un der any of these standards, however, by consenting to a test or procedure. It is

Was a search made? Was anything found? Did the police have a warrant? Were others arrested with the client? Were there witnesses?

therefore advisable for him to refuse any tests. Also advise your client to refuse any request to take a lie detector test. There are, however, exceptions to this

rule. For example, your state may re

quire that a driver submit to a breath alyzer or other alcohol ingestion tests on penalty of the suspension or loss of his license. In this circumstance, you may

want to advise your client to submit to the test before you arrive if doing so is necessary to protect his license.

Tell the client that if news reporters try to photograph or interview him, he should remain calm and should not duck, hide his face or make faces. Pho tographs of this sort of conduct can give

prospective jurors a bad impression if they are published or broadcast.

Ask your client if he knows of any po lice plans to move him and, if so, when and where. Also ask the client if he is being mistreated in any way. Finally, tell him that you will see him soon at the station.

Calling the police officer Your next call should be to the police

officer responsible for your client's case.

Ascertain all the charges that have been filed or are being considered against your client and the officer's estimate of the likely bail. Ask the officer whether there are plans to move the client and, if so, when and to where.

Tell him that you have instructed the

client to refuse interrogation, lineups, identification procedures or physical tests until you arrive. Obtain the of ficer's name and identification number.

Before you go to the police station, obtain copies of the statutes allegedly violated and the rules of procedure. Take these copies with you. Contact the persons suggested as a source of bail

money. Determine whether the defen

learn the results.

76 ABA Journal, The Lawyer's Magazine

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Page 5: What to Do When Your Client Calls from Jail

For further reading

Here is a list of reference material

for civil practitioners about handling a criminal case.

Amsterdam, Trial Manual 4 for the Defense of Criminal Cases (4th ed. 1984). American Law Institute American Bar Association Commit

tee on Continuing Professional Edu cation; Philadelphia. $175 (two volumes). 929 pages.

Wolfson and Cutrone, "The At

torney-Client Relationship." Illinois

Criminal Practice (1980). Illinois In

stitute for Continuing Legal Educa

tion; Chicago. $54.60.

LaFave, Search and Seizure

(1978). West Publishing Co.; St. Paul. $195 (three volumes plus 1984 pocket parts). 2,283 pages.

Miller, Dawson, Dix and Parnas, Criminal Justice Administration

(1982). Foundation Press; Mineola, N.Y. $25.

Cipes, Criminal Defense Tech

niques (1983). Matthew Bender; New York City. $525 (seven volumes).

dant's family will post bail or if a profes sional bail bondsman will be necessary. If so, call the bondsman and make the necessary arrangements before leaving for the station.

Your role at the police station When you arrive at the police station,

identify yourself at the station house desk. You often can obtain complaint or arrest papers there that will clarify the nature of the charges against your client. These papers also may reveal legal de fects in the charge or procedures used to arrest the client.

The next step is meeting your new cli ent. This is often a delicate process. Be gin by explaining that your role as an attorney is to help him. Explain the at torney-client privilege. Then give your client a brief overview of what will hap pen to him in the next few hours. For example, explain that he may be placed in a lineup, interrogated or arraigned. Ask your client if you can help him

with anything outside the jail. Re member that you are one of his only links with the outside world. The pres ence of an additional person, however,

may result in waiver of the attorney-cli ent privilege. When the defendant does not know

you, a detailed interview involving the facts of the charged crime is probably inappropriate at your first meeting with him. You have had little time to prepare and probably have not yet developed the defendant's trust. If the defendant is a relative of an established client, it may be possible to gain the defendant's trust to some extent by having the established client introduce you.

Nevertheless, you may wish to limit the initial interview in such cases to the following critical areas:

You should elicit the most basic facts of the events in question. Par

ticular attention should be paid to any places or objects that must be observed or preserved immediately.

Determine the circumstances of the arrest. Did the police have a search or arrest warrant? Was a search made?

Was anything found? Were any others arrested with the client?

Were there witnesses to the alleged crime? If these individuals are not imme diately located, it may become very dif ficult to do so later.

Find out what has happened to your client since his arrest. Has he been abused? Have the police interrogated him or conducted identification pro cedures or tests? If interrogation or tests have taken place, you should try to

January 1985 Volume 71 77

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Page 6: What to Do When Your Client Calls from Jail

Finally, obtain the facts necessary to secure your client's release on bail. Reduce these facts to an affidavit ex ecuted by your client which can be at tached to any necessary pretrial release

motions.

If the defendant is well known to you, you may wish to go beyond these basic questions.

Negotiating with the prosecutor Normally you should defer a decision

about the defense strategy pending a full investigation. There is, however, at least one major exception to this rule. If the defendant openly admits his culpability or the government has clearly dis- ^^^^^^^^^

other are

by separate ̂̂ ^^^^^^H the may ̂̂ ^^^^^^H a ^^^^^^^^H

may be less ^^^^^^^^H than ^^^^^^^^H the

The defendant ^H^^^^^^l offer the govern- B^^^^^^^^l ment cooperation is RPB^^^^^I likely to receive the ei?^j^^^^^| best deal. ESpi^^^^^l You should con- I^I<^^|^^^| duct sufficient inves- KSJ^H^L^ifl tigation, however, to BiflflHH^^L^I be able to advise the IHHHHHII prosecution accu

rately of your cli ent's expected testimony. If the version

of facts you recount varies from what

the prosecutor already knows, the pros ecutor may not be interested in further bargaining.

You should negotiate only with the prosecutor, not with the police. The po lice are often unable to make binding deals. Rule 410 of the Federal Rules of Evidence provides a privilege for state ments made during plea negotiations with the prosecutor. The privilege does not apply to statements made during ne gotiations with police or other law enfor cement officials.

You, not your client, should do the bargaining. Defendants have a natural

tendency to minimize their involvement in criminal activity. Even after giving you an accurate account of his involve

ment, your client may be less candid in discussions with the prosecutor. A mis statement might be fatal to the negotia tions. You are less likely to misstate the

client's expected testimony. If J;he pros ecutor insists on interviewing the client, you must prepare him for the interview as you would for his testimony at trial, to prevent misstatements.

The lineup The police may not let you attend the

lineup even though you are at the station house. An accused has a Sixth Amend ment right to assistance of counsel at a lineup only after adversary criminal pro

ceedings have been instituted against him. Moore v. Illinois, 434 U.S. 220 (1977). The accused, therefore, often has no federal constitutional right to have

counsel present at a lineup that occurs

shortly after his arrest. Kirby v. Illinois, 406 U.S. 682 (1972). Several state courts, however, have ruled as a matter

of state law that counsel must be present at all pretrial identification procedures.

Michigan v. Jackson, 111 N.W.2d 22 (Mich. 1974), Blue v. Alaska, 558 P.2d 636 (Alaska 1977), and Pennsylvania v. Richman, 320 A.2d 351 (Pa. 1974); See generally Miller, Dawson, Dix & Parnas, Criminal Justice Administration 524-25 (1982). You should check your state's law to ascertain your right to be present at a post-arrest identification procedure.

If you are present at the lineup, your role generally is limited to observing the identification procedure to ensure that it is conducted fairly. See generally ALI,

A Model Code of Pre-Arraignment Pro cedure 428-33 (proposed official draft 1975). The defendant enjoys protection under the due process clause against lineups or other identification pro

cedures that are "unnecessarily sug

gestive and conducive to irreparable mistaken identification/' Stovall v. De~

nno, 388 U.S. 293 (1967). You should note especially:

How many others were in the line up and their appearance in relation to the defendant's appearance. If possible, you should obtain the names, addresses and photographs of everyone in the lineup.

How many witnesses viewed the lineups and what was said between the

witnesses and the police. The names and descriptions of the

police present. The date, time

and lighting condi tions of the lineup and the distance of the viewing witness from the lineup.

If you cannot be present at the lineup, you should advise your client to ob serve the factors set forth above and de brief him as soon as possible.

Having talked with your client and attended any tests or

procedures, you are

ready to leave. Be

fore you do, repeat the warnings you gave the client over the telephone. You also should repeat to the investigating of

ficer your request that the defendant not be interrogated or tested in your ab sence. Speaking to the officer also may provide an opportunity for you to learn what the officer knows about the case.

Finally, it is possible that the com plaining witness or another eyewitness to the alleged crime is still present at the police station. You should attempt to in terview these individuals.

Getting the client out of jail The main concern of an arrested client

is likely to be obtaining release. By ob taining that client's release you signifi cantly reduce the danger that he will make a damaging statement to the po lice. His release also will allow him to assist in the defense by helping to find witnesses or other evidence and just by talking to you without the constraints of the jailhouse.

In almost all jurisdictions an accused has a right to pretrial release on bail or

78 ABA Journal, The Lawyer's Magazine

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Page 7: What to Do When Your Client Calls from Jail

other conditions in all non-capital cases.

In capital cases conditions of pretrial re lease may be denied in the court's dis cretion.

Pretrial release traditionally has been conditioned on the defendant's deposit of monetary bail with the court, subject to forfeiture if the defendant fails to ap pear. In the last two decades, however,

legislatures and courts have placed greater emphasis on alternative condi

tions of pretrial release. The best exam

ple of these reform efforts is the Federal Bail Reform Act of 1966, 18 U.S.C. ? 3146.

This act is a good example of the fac tors courts consider

in setting bail. It

accused's family ̂̂ ^^^^^/^

some jurisdictions an ^^^^^^^^^B agency or organiza tion prepares a pretrial release report as

to these factors for each person ar

rested. If that report has been prepared, you should obtain a copy of it.

In non-capital cases the act provides that a defendant ordinarily should be re leased pending trial on his own recog nizance or on his execution of an

unsecured appearance bond. The court

may order additional conditions of re lease only on a finding that they are nec

essary to secure the defendant's

appearance. After making that finding, however,

the court may:

Require that the defendant be re leased into the custody of someone who agrees to supervise him.

Place restrictions on the defendant's travel, association or residence pending trial.

Require the defendant to execute an appearance bond secured by a deposit with the clerk of court of cash or se

curities not exceeding 10 percent of the bond.

Require the defendant to execute a bail bond or to deposit a full cash bond with the clerk of court. A bail bondsman will usually charge 10 percent of the bail for a bail bond.

Impose any other condition of re lease, including a condition that the de fendant return to custody after specified hours.

President Reagan recently signed PL 98-473, a new law which, if upheld, will

modify these bail procedures and will al low a judge in granting bail to impose pretrial detention on persons viewed as

a danger to the community.

Conditions of release In federal proceedings a defendant's

conditions of release are established at his first appearance before a judicial of ficer. 18 U.S.C. ? 3146(a). This is usually the arraignment. State procedures vary

widely, so you must ascertain the method used in your jurisdiction.

These methods may include: Endorsement on arrest warrant. In

many states the court issuing an arrest

warrant for the defendant will endorse on the warrant the amount of bail re

quired. Station house bail. In many jurisdic

tions the police are authorized to release a defendant on bail in accordance with a

judicially approved schedule keyed to the nature of the charge.

Initial appearance. If the client is unable to obtain release through a method listed above, his bail will be set

at an "initial appearance" before a judi cial officer. Almost all states have stat utes requiring that the defendant's initial appearance occur "without unnecessary

delay," "immediately" or within a spec ified time, usually 24-48 hours. See ALI,

A Model Code of Pre-Arraignment Pro cedure, Appendix I, at 626-27 (Proposed Official Draft 1975). The actual timing of the initial appearance often will depend on when a judicial officer is first avail able to set bail after the defendant's ar rest. Some jurisdictions have established night court or bail commissioner sys tems to ensure that conditions of release can be established promptly even for

persons arrested at

night or on the weekend.

Those in other ju risdictions are not so fortunate. In about

half our cities no procedure is avail

able to set bail on weekends. See 2

ABA, Standards for Cr im in a I Justice, 10-48, 10-49 (1980).

Because procedure varies widely, you must determine the local practice. If the client cannot obtain acceptable condi

tions of release at his initial appearance, he may appeal the bail decision or chal lenge the conditions of release via habeas corpus.

At least you helped By following these basic guidelines

you can advise your client from the mid

night phone call to the moment he steps out of jail. In doing so, you will give a

significant boost to his entire case. Once

you have dealt with the emergency, however, bring in veteran criminal coun sel to handle the intricacies of the case that still remain.

(Jill Wine-Banks is the solicitor gen eral of Illinois. Carl Nadler is an asso ciate at Jenner & Block in the firm's Washington, D.C. office. This article was adapted from the program "Crimi

nal Problems That a Civil Law Practi tioner Cannot Escape," sponsored by

the ABA Young Lawyers Division, Criminal Justice Section and General Practice Section at the 1984 midyear meeting.)

January 1985 Volume 71 79

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