Why don’t you ask your client?

Feb 06, 2008 Why don’t you ask your client?

Photo from website of U.S. District Court (W.D. Mi.).

In Virginia District Court, mandatory criminal discovery is practically non-existent, and is limited to defendants’ statements to law enforcement that the prosecutor intends to introduce into evidence, the defendant’s criminal record, and Brady/exculpatory evidence (except that the prosecutor ordinarily is the sole person to decide what evidence is exculpatory, which is like having the fox guard the henhouse). Va. Sup. Ct. Rule 7C:5. Moreover, the governing court rules require seeking, pretrial, a discovery order even to be able to obtain Rule 7C:5 discovery, and in some counties, a lawyer must appear for a pretrial hearing just to get a judge’s signature on a discovery order that the defendant is entitled to in the first place. Worse, in all Virginia courts, Jencks is non-existent. Welcome to Virginia, where I visit but do not live (I live in the People’s Republic of Montgomery, Maryland; my "Close but no cigar" case described here and experience — while waiting in court for my cigar case to be called — seeing overpaternalism (at best) by the County Attorney’s Office in trying to enforce overpaternalistic county regulations led me to give the county such a moniker).

Because of the limited mandatory discovery available in Virginia, interviews of the police in a criminal client’s case become all the more important. However, in some counties the cops are very tight-lipped and refer the lawyer to the prosecutor. (Practice pointer: Sometimes I will suggest to a tight-lipped police officer to remove the tight lips, lest I cross-examine the cop at trial about how s/he plays favorites with who s/he tells "the truth".) Except for counties that believe in giving more discovery than mandated by law (Arlington County is one of them), many prosecutors will be stingy about giving any discovery not required — in their view — by the discovery rules.

As a result, one’s stomach often can be turned by hearing cops and prosecutors frequently say (sometimes cheekily): "Why are you asking me that. Your client was there. S/he will know." There you have it. Instead of my getting discovery from the opponent (and to know what the cop knows (or claims or lies about), in helping my client make a calculated decision whether to seek a trial with a jury or without, or to negotiate a resolution of the case (and the best approach to negotiate)), all I need to do is to ask my client. Aside from the preposterousness of such a response, what if my client lies to me (many of my guilty clients lie, and I doubt I am the only criminal defense lawyer with this problem), or is too inarticulate or unintelligent to understand what I want to know, or was — at the time of the incident — too inebriated (that sometimes happens) or confused or without a sufficient perspective to know what happened or to know how the cops saw the situation? 

Sometimes cops ask me: "What did your client tell you? Then I can fill in some of the blanks for you." There you have it, just give up attorney-client confidentiality and the criminal defense client’s right to remain silent, and give all the information to the cops. NO. Don’t do it. Jon Katz

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