View Full Version : Defense Lawyer Procedure Q

08-12-2016, 08:57 PM
I have an idea for a novel in epistolary format in which the protagonist writes a lengthy statement to her court-appointed lawyer describing her version of the crime she's accused of committing. Using the unreliable narrator format, the reader doesn't know until the end how much of the statement is true. Is that plausible for a lawyer to ask for such a statement or would they only interview verbally? Does it make a difference if the protagonist is in custody?

U.S., modern-day setting.


08-12-2016, 09:20 PM
Good lord does a defense atty not want a long letter explaining details of the crime.

08-12-2016, 10:37 PM
Ha! That's what I was afraid of. Thought I'd ask before committing too many brain cells. Thanks!

08-13-2016, 01:00 AM
There's a lot of factors involved here. I don't know of anyone who ever requested this, but most defense attorneys have received them (including someone who got a video-taped statement from his client). There's no reason not to request one if the circumstances warrant it, but I'm not sure when I would ever want one. It would be covered in most cases under attorney/client privilege.

A recorded verbal statement is about as far as most defense attorneys want to go. Most clients will change their stories as they become more aware of the facts and you don't want to have to impeach your own client. My approach was never to request their story, but to let them tell it to me when and if they were ready. A few plead without me ever hearing from my client.

The ones the clients send tend to be a bit bizarre. I have a two hundred page explanation of why twelve-year-old girls do not have breasts. To say that it is strange would be an understatement. But I'd have no problems believing a client wrote such a statement. This novel works using your idea -- https://www.amazon.com/Lifeboat-Novel-Charlotte-Rogan/dp/0316185914

If written in jail, it would be on individual pages and more likely pencil than pen. Transferring it to the attorney may present problems. Searches of the suspect's cell could be an issue.

Jim Clark-Dawe

08-13-2016, 02:17 AM
Wow, great info. This gives me much to think about. Thanks for the comp, too. I'll check that out and noodle some more.

08-13-2016, 06:36 AM
I'll second everything Jim Clark-Dawe said, but just emphasize that the old joke is true: "my clients have the right to remain silent, but not the ability."

Although I do appeals mostly, I occasionally have to go do initial appearances for people who have just been arrested. That hearing lasts 5 minutes max and has nothing to do with the facts of the case. I will tell people when I meet with them that I don't care about the facts of their case at this point (they'll have another attorney for their case, anyway). Some get it and don't say a thing. Others nod like they understand, then plow forward with their tale.

In other words, while I wouldn't believe a story where the attorney asked for such a statement, I'd have no problem believing a story where the client just sent his attorney such a statement.

08-13-2016, 06:50 AM
I'll second everything Jim Clark-Dawe said, but just emphasize that the old joke is true: "my clients have the right to remain silent, but not the ability."

Ah, perfect. Thanks!

08-18-2016, 08:17 AM
It happens. Typically the defendant is in custody and usually only sees their attorney when transported to court, and usually only for short periods of time. If itís a very simple case, a written statement usually isnít necessary. But for more complicated cases, or cases where thereís a lengthy history or back-story that provided motivation for the crime, i.e. a lot of family drama, documents, accounts, or potential witnesses, itís not unusual for counsel to tell the defendant to write down the facts and provide it to counsel the next time theyíre in court together. Although not ideal, the reason some attorneys will do this is because they need an account of the facts, and since attorneys usually have more than one client to represent in court, (if counsel is a public defender, they always have multiple clients, and if counsel is retained, they try to schedule multiple appearances in that courthouse on the same day) visits at the courthouse usually don't provide enough time to obtain all the information they need. So it's either have the defendant provide a written statement, or counsel or counselís investigator has to make a trip out to the jail to visit and interview the defendant, which can be a lengthy distance away, and usually at night after a long day at work.

Having the defendant write a statement of what happened also has the added benefit that it helps the defendant remember what happened. Sometimes it takes years for a case to go to trial. The defendant's written statement is helpful to refresh their memory of important details the closer they get to trial.

Also, written statements aren't only provided when the defendant is in custody. I used to work in a public defenderís office that would give defendants who bailed out of custody an interview packet that included a section to describe the reason for their arrest, and defendants would bring it with them to their first pretrial appointment.