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ironpony
08-21-2016, 01:51 AM
For my story, basically a defendant has a lawyer who got him off in court, on felony charges. The main character wants to find out the truth about the case and wants to find out more, even if it means breaking and entering. He wants to find out the truth, and the only time the defendant might have logically told anyone the truth, was to his attorney, in a protected conversation, so the attorney knows what to build a defense from.

However, where would the attorney keep the record, or his notes of the protected conversation, which he would have used to build a defense? Would it be kept in the case file, in a file cabinet, at the law firm, or would the attorney, keep it somewhere else?

Thank you very much for the advice, anyone. I really appreciate it.

frimble3
08-21-2016, 11:40 AM
IANAL, but if the information was used in court, it would be part of the public record, wouldn't it? And if it was just a secret background sort of tip ie 'I didn't kill her because I was off killing some other guy', to encourage the lawyer to believe the client's innocence, and not something that could be used later in an appeal - why on earth would the lawyer make a record of something potentially damaging?
The best place to keep a secret is in your head.

blacbird
08-21-2016, 11:45 AM
IANAL, but if the information was used in court, it would be part of the public record, wouldn't it?

It absolutely would be, if used in court. But such a record used only between the attorney and client would be privileged and confidential, wouldn't it?

But, if it was a confidential record of that sort, it couldn't be used in court as a defense, either, could it? Pretty much a Catch-22.

caw

ironpony
08-21-2016, 01:44 PM
Well yes, it wouldn't be used in court. This is why the MC is wanting to snoop around in the lawyers private files to find out what the client would have told him. Cause the MC wants to know the truth, but the only person, he can think of that the client would incriminate himself towards, is his lawyer, in a protected conversation.

However, how can a lawyer possibly keep all the protected conversations in his head and not write them down? If a lawyer had to see say, six clients in a week, and they all had protected conversations to tell them, and he had to memorize each one to build a defense for each, is he really going to keep all that info in his head, without making records for reference for any of them?


why on earth would the lawyer make a record of something potentially damaging?
The best place to keep a secret is in your head.

But when it comes to a protected conversation, can't you keep notes of it in a file for reference, and it wouldn't be allowed to be used in court to damage someone, because it's protected? Like the protected conversation cannot be used as evidence, cause it is protected. So if it's protected, shouldn't the client be legally fine, if anyone were to look into the file and discover it?

If someone were to steal a lawyers protected conversation record, and then try to use it in court, wouldn't the judge rule in inadmissible cause it was a protected conversation, and cannot be used against the defendant? If so, then what does a lawyer have to worry about and therefore can make a record of a protected conversation, and it wouldn't legally be a problem, would it?

Helix
08-21-2016, 02:04 PM
Honestly, all these characters sound like complete dimwits to me. If the crim is such a mastermind that the only evidence for his guilt is a confession in confidential case notes, then surely he wouldn't be daft enough to admit it to his lawyer in the first place.

:e2shrug:

ironpony
08-21-2016, 02:25 PM
But I thought that the point of a protected conversation, is that if it's protected, then legally you wouldn't have anything to worry about. Why is is dumb to have a protected conversation with a lawyer, when it's that lawyer's job to know what really happened, so the lawyer is able to build a defense from it?

You say he is dumb to admit it to his lawyer, but how is it dumb if it's a protected conversation? A protected conversations not protected in reality, and I am missing the point maybe? I thought that if you have a protected conversation with the lawyer you hired, then legally, you have nothing to worry about, do you?

What happens in the story is that the criminal is arrested (and therefore not a mastermind, since he was discovered), and he gets a lawyer. He has the protected conversation with the lawyer, which is what he is suppose to do, if he expects the lawyer to know all the facts, so the lawyer can build a defense. Isn't that the point of a protected conversation?

You say it's dimwitted, but isn't it actually more dimwitted to lie to your lawyer, which would cause him not know all the facts and not be able to create the best defense, therefore?

You say that the only evidence is the one admitted to his lawyer in confidential case notes. But since it's confidential, then legally it's not evidence, and he has nothing to worry about, does he? Or is no conversation actually legally confidential or protected, and therefore, it is dimwitted for a client to ever tell his lawyer what really happened in a crime?

Helix
08-21-2016, 03:06 PM
It's your story, so you must write it the way you want to be true to your vision.

But if your story's climax depends on a criminal who has evaded conviction because of insufficient evidence actually admitting his guilt to a lawyer who then stores the confession in a place where the someone who failed in securing sufficient evidence in the first place can then find it but not be able to use it anyway because b&e is against the law and the communication is privileged, I think your audience is going to be chucking things at the screen.

ironpony
08-21-2016, 03:14 PM
Well the main character is not planning on using the confession as evidence. He wants to use it as a guide to find out what really happened, and then decide how to go from there. He is more obsessively interested with the truth at this point, than evidence. He wants to know the truth, so he can then decide what to do, with this new knowledge. But is not going to use the confession as evidence after obtaining it illegally. He is just using the confession to know what really went down.

Now you said that it would be dumb of a criminal to admit guilt to his own lawyer. But I thought that the point of a protected conversation was so that the lawyer can know the truth to build a defense from it. Is their no such thing as a protected conversation and it's actually smarter for clients to lie about what happened, to their own lawyers? I thought that there was such a thing as protected conversations between attorney and client.

Cath
08-21-2016, 03:55 PM
Lawyers are smart people. Smart people don't write down incriminating information if their intent is to cover it up.

You're making your lawyer complicit in covering up a crime. That puts her or him in a difficult situation legally and ethically.

Latina Bunny
08-21-2016, 04:39 PM
I googled, and according to some sites, files can be either paper or electronic. It sounds like paralegals and assistants are responsible for maintaining them.

Here is a link about some procedures, but I don't know if it's accurate or if different states have different regulations, etc: http://files.www.lawyersmutualnc.com/risk-management-resources/risk-management-handouts/file-management-retention-and-destruction/File_Management_Retention_and_Destruction.pdf


ETA: It also sounds like, after a case is closed/finished, that files may be destroyed after a set number of years, or earlier with the permission of the client, though there would still be a record of the date when the files were destroyed.

If I was a criminal mastermind, and the case was closed, I would have the records destroyed ASAP...

ETA2: Obligatory I am not a lawyer disclaimer. ;)

jclarkdawe
08-21-2016, 05:00 PM
I think you're talking about the situation where the client confesses to the crime prior to the trial. From the point of view of the attorney, that means ethically (and you can get disbarred for failing to be ethical), you're limited to a defense of disproving the prosecutor's case. You are not allowed to introduce false evidence. I doubt that you'd see anything at the trial to indicate that the client had told the attorney the truth.

Clients like for their attorneys to believe in them. Guilty clients don't want an attorney who doubts them. They'll either spin a story that they expect their attorney to believe (we're not that stupid) or they won't tell us anything. Where I've had clients "confess" is after the trial with a not guilty verdict, a discussion of double jeopardy (client concern), and then a tale of how they screwed the system. No attorney that I'm aware of would take notes in that circumstance and in the two times it happened to me, there are no notes or anything in the client's file to indicate anything happened. There isn't even a not of the discussion regarding double jeopardy.

Remember that most criminal clients do not trust their attorneys. They're not stupid either. They're used to people disbelieving them and them getting into trouble. Attorneys are part of the establishment as far as most of our clients are concerned.

Perry Mason trusted his secretary, Della Street, completely. I don't. I don't know a secretary's or paralegal's personal agenda and know that my files can be reviewed by people I employ. Someone I hire years later may know a former client. Do I want to risk Sue finding out that her BFF Mary had an abortion? I don't think so.

I carry a lot of secrets in my head. Probably not a whole lot of detail, but the details probably were never important. Some mattered at the time, some still matter, but many the people surrounding the client had already guessed. But they're still in my head, and that's where they'll stay. But probably a lot less than you would think. If I heard one confidential secret a week I'd be surprised. What people want to keep close to themselves are not things that they'd trust to a stranger, even if a privilege applies.

Jim Clark-Dawe

ironpony
08-21-2016, 10:36 PM
Okay thanks for the input. I thought that the reason why it was called a protected conversation between attorney and client, is that the conversation is protected, PERIOD. Meaning that anyone who looks in the file, cannot use the conversation for any purpose, cause it's protected no matter what. I didn't know that the conversation needed to be verbal only. I thought that if the conversation was documented in a file, that that file was legally protected, and cannot be used for anything, and therefore, the client wouldn't have to worry.

Plus in my story, the lawyer is not guilty of introducing false evidence. He just wants to have the real story, so he can build a better defense. Is the conversation still protected, if he is not introducing false evidence, and just using the clients details of the crime, as a defense guide only?

cornflake
08-21-2016, 10:52 PM
How would having the real story help him build a defense that ISN'T the real story? "Tell me what really happened, so I can not tell anyone it!"

ironpony
08-21-2016, 10:55 PM
Basically I just thought that lawyers kept the real story in notes for reference in general, in case they found something in them that was useful. And since the conversation is legally protected, what do they have to worry about? Even if someone else read the file hypothetically, any confession on the defendant's part that they read, is protected so who cares legally?

I thought that the point of a protected conversation, meant that if someone else read the conversation, that the client would be immune from it being used to incriminate him cause it is protected.

Why do lawyers call it a protected conversation of it's not immune from being used to incriminate? I do not understand why they call it that then.

CassandraW
08-21-2016, 11:23 PM
Even assuming the lawyer wanted the "real" story and the defendant wanted to tell it to him/her, the lawyer would not necessarily want to write that down. The lawyer would write down facts that were essential to the client's alibi, certainly. But why write down "I shot him three times in the head" if the defense is going to be "I was at a boy scout rally all day"?

I'm not a criminal lawyer, but I am a lawyer. FYI, I do not write down every single word my clients say by any means. Nor do I assume they tell me everything. A criminal defense lawyer certainly would not assume this.

FYI, also -- if a client confesses his guilt to the lawyer, it ethically limits what the lawyer can do in his defense. Yes, the conversation is protected. But if the lawyer knows his client is guilty, he cannot lie to the court and jury and say his client didn't do it. He can only argue that the prosecutors have failed to put forth the evidence necessary to prove the elements of the offense in court. He can argue that the prosecutors have failed, legally, to prove guilt, but he can no longer say factually "my client didn't do this crime."

Your character would be taking an absolutely ridiculous and unbelievable risk, breaking into an attorney's office on the off-side chance that (a) the defendant confessed guilt to the attorney, AND (b) the attorney wrote this down and retained the notes, AND (c) he or she would be able to find those notes (which could be physical and locked in a filing cabinet or drawer anywhere in the firm's offices, or stored digitally in a computer somewhere, in which case your character would have to hack in to get them.

Speaking as a lawyer and a reader, I would throw your book against the wall and stop reading at that point. And I'd take the trouble to go online and give a review making fun of this plot point. That's how ridiculous I find it. Seriously. Find another way.

ETA:

Here's a link in nice plain English (rather than legalese) on this point (http://www.nolo.com/legal-encyclopedia/representing-client-whom-the-lawyer-thinks-is-guilty.html):


The key is the difference between factual guilt (what the defendant actually did) and legal guilt (what a prosecutor can prove). A good criminal defense lawyer asks not, “Did my client do it?” but rather, “Can the government prove that my client did it?” No matter what the defendant has done, he is not legally guilty until a prosecutor offers enough evidence to persuade a judge or jury to convict.

However, the defense lawyer may not lie to the judge or jury by specifically stating that the defendant did not do something the lawyer knows the defendant did do. Rather, the lawyer’s trial tactics and arguments must focus on the government’s failure to prove all the elements of the crime.


In truth, the defense lawyer almost never really knows whether the defendant is guilty of a charged crime. Just because the defendant says he did it doesn’t make it so. The defendant may be lying to take the rap for someone he wants to protect, or may be guilty, but only of a different and lesser crime than the one being prosecuted by the district attorney. A defendant may have done the act in question, but the client may have a valid defense that would exonerate him. For these reasons, among others, defense lawyers often do not ask their clients if they committed the crime. Instead, the lawyer uses the facts to put on the best defense possible and leaves the question of guilt to the judge or jury.

jclarkdawe
08-21-2016, 11:40 PM
Useful stuff is in my head, not the file. I want immediate access to it.

The file is not legally protected, although some portions of it come under attorney-client privilege. My secretary is not an attorney. Worst I can do if she blabs something is fire her. If someone tells something that they want to keep secret, that to me means I need to protect it from everyone. Many times clients will come to you because they know your secretary. How far would you trust someone in that situation not to wonder about interesting secrets.

What attorney-client privilege means that if someone, even a police officer or judge, asks me about something, I can refuse to answer. In the same situation, the privilege does extend to my employees or experts that I might be using.

Here's Rule 1.6, which is what you're discussing:
Rule 1.6 Confidentiality Of Information


(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

The communication can be either verbal, written, videoed, or whatever means the client chooses. If an attorney, especially one who deals with criminals, believes his or her client, he or she is dumber than shit. There was a TV show about a doctor called HOUSE. House always said patients lie. Guess what. Everybody lies. My kids gave me a t-shirt with that on it because they know it's what I always say. Never mind that your client only saw what happened from his viewpoint, the likelihood of a client telling you the "real story" is as bad as my chances of winning PowerBall. You might get pieces and parts, you'll definitely get a shaded story (two beers are the most that anybody has ever drunk), but you won't get the "real story," whatever the hell that means.

Attorneys learn that truth or lie doesn't matter so much as whether it can be proved or not. Unless I'm putting on a defense, I really don't care what the defendant says happened. That means I'm only going to try to show that the State failed to prove their case. If I put on the defense, I cannot lie. Nor can I bring in witnesses that I know are lying.

And most attorneys have a somewhat complicated filing system. I only know a few who keep them in alphabetical order. My retired files are kept in storage (definitely not in the office), and are filed by numbers without reference to anything other than a random assigned number. The index system is somewhere else, and I'm not going to tell you about that.

Jim

Lauram6123
08-22-2016, 12:00 AM
It's your story, so you must write it the way you want to be true to your vision.

But if your story's climax depends on a criminal who has evaded conviction because of insufficient evidence actually admitting his guilt to a lawyer who then stores the confession in a place where the someone who failed in securing sufficient evidence in the first place can then find it but not be able to use it anyway because b&e is against the law and the communication is privileged, I think your audience is going to be chucking things at the screen.

As I read this, it reminded me of something. It's been a while since I've read it, but in The Postman Always Rings Twice, an employee of the MC's defense attorney takes a seriously damning confession, which for various reasons is not ultimately used in court. Both the MC and his girlfriend are acquitted, but later that same employee turns rogue and then blackmails the couple with the information he has.

So for the OP's story, maybe going after a secretary or paralegal who was privy to the incriminating confession/evidence might be a better way to go.

CassandraW
08-22-2016, 12:05 AM
As I read this, it reminded me of something. It's been a while since I've read it, but in The Postman Always Rings Twice, an employee of the MC's defense attorney takes a seriously damning confession, which for various reasons is not ultimately used in court. Both the MC and his girlfriend are acquitted, but later that same employee turns rogue and then blackmails the couple with the information he has.

So for the OP's story, maybe going after a secretary or paralegal who was privy to the incriminating confession/evidence might be a better way to go.


Except, for the reasons JClarkDawe mentions, it is quite a longshot that the secretary or paralegal would be privy to the information. "Going after" someone for information they very likely do not have is quite a risky strategy, and one that probably wouldn't pay.

The scenario in The Postman Always Rings Twice is more feasible -- someone who actually has the information trying to make use of it.

Ketzel
08-22-2016, 12:27 AM
I kept the original notes of my client interviews in a locked file cabinet. They were separate from the official case file that held other paper docs related to the case. My client interview notes were always handwritten, in my extremely idiosyncratic handwriting and personal notation system. My secretary of many years could have gotten the gist, but probably not completely. Even if someone could identify the interview they were looking for and decipher it completely, it would never contain any information that would contradict the defense presented, because I wouldn't have any information that would contradict a defense I presented. No defense attorney asks the client if he is guilty. Most defense attorneys have a standard introductory speech they give to a new client which includes the importance of telling the truth and which also explains the attorney's obligation to not present false testimony to the court. And yes, everyone lies to the lawyer. Defenses are built around things like alibis, undermining witness identification, expert witness testimony, suppressing illegally gathered evidence, etc.

In addition to Rule 1.6, Rule 3.3: Candor to the Tribunal is also involved when preparing a criminal defense. Subparagraph (e) (in my jurisdiction) states:

e) In a criminal case, defense counsel who knows that the defendant, the client, intends to testify falsely may not aid the client in constructing false testimony, and has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed. (1) If a lawyer discovers this intention before accepting the representation of the client, the lawyer shall not accept the representation.
(2) If, in the course of representing a defendant prior to trial, the lawyer discovers this intention and is unable to persuade the client not to testify falsely, the lawyer shall seek to withdraw from the representation, requesting any required permission. Disclosure of privileged or prejudicial information shall be made only to the extent necessary to effect the withdrawal. If disclosure of privileged or prejudicial information is necessary, the lawyer shall make an application to withdraw ex parte to a judge other than the judge who will preside at the trial and shall seek to be heard in camera and have the record of the proceeding, except for an order granting leave to withdraw, impounded. If the lawyer is unable to obtain the required permission to withdraw, the lawyer may not prevent the client from testifying.
(3) If a criminal trial has commenced and the lawyer discovers that the client intends to testify falsely at trial, the lawyer need not file a motion to withdraw from the case if the lawyer reasonably believes that seeking to withdraw will prejudice the client. If, during the client’s testimony or after the client has testified, the lawyer knows that the client has testified falsely, the lawyer shall call upon the client to rectify the false testimony and, if the client refuses or is unable to do so, the lawyer shall not reveal the false testimony to the tribunal. In no event may the lawyer examine the client in such a manner as to elicit any testimony from the client the lawyer knows to be false, and the lawyer shall not argue the probative value of the false testimony in closing argument or in any other proceedings, including appeals.
adopted March 26, 2015, effective July 1, 2015.

jclarkdawe
08-22-2016, 12:28 AM
As I read this, it reminded me of something. It's been a while since I've read it, but in The Postman Always Rings Twice, an employee of the MC's defense attorney takes a seriously damning confession, which for various reasons is not ultimately used in court. Both the MC and his girlfriend are acquitted, but later that same employee turns rogue and then blackmails the couple with the information he has.

And thus why you don't tell the help the client's secrets.

Jim Clark-Dawe

ironpony
08-22-2016, 12:45 AM
Okay thanks. Well before I continue with this plot idea, I would like to know more about the protected conversation laws between client and attorney first, so I know...

I thought that protected meant protected. Like in the The Postman Always Rings twice, when the assistant to the defense attorney blackmails the couple, what does he say he will do with the confession, if he doesn't get what he wants?

Does he say he will turn the confession over to the police? I thought that if a conversation was protected then the police couldn't use it as evidence though. So wouldn't turning it over to the police be useless, and therefore the blackmail wouldn't legally work, since the conversation is protected between client and attorney?

If a conversation is protected, then how can an attorney's assistant do anything damaging with it, since he/she would be breaking the law, by turning over a protected conversation, and therefore, it couldn't be used?

jclarkdawe
08-22-2016, 01:26 AM
Police can use evidence illegally obtained, providing that the police did not obtain it illegally. (Read this sentence carefully. It's very simple, but also very complex.)

I'm not sure that the assistant breaks any law that would result in criminal prosecution. I doubt that assistant would receive anything more than a year or so in jail. It's the blackmail that would nail the assistant to the wall.

You're not understanding the privilege. Anything I obtain under the attorney-client privilege I can not reveal nor can I be forced to reveal it by a police officer or judge. That's it. That's all it does.

It's not like a top secret clearance with the military, where there are criminal sanctions imposed by law for revealing information. Quite honestly, most prosecutors, police officers, and the general public would love to see the attorney-client privilege disappear, especially when it involves a case they're working on.

Jim Clark-Dawe

ironpony
08-22-2016, 01:42 AM
Oh okay I see. I thought that when they say protected conversation, that any record of that conversation has pretty much a legal stamp on it, saying this conversation is protected and cannot be used as evidence.

So it's protected by the attorney, not protected by the law in general then.

Basically in my story, the client tells his attorney, his side of the story, and the attorney gets the prosecution's side of it as well. The attorney is able to figure out that one of the prosecution's witnesses is lying. So he makes not of this in his notes, but does not tell anyone cause he figures it will help his case. But the defense attorney is not getting his client to lie or anything like that. He just happened to figure out that one of the prosecution's witnesses was lying and let's it happen, figuring that it's the prosecution's responsibility, and not his.

So if a defense attorney knows this, he would not write it in his notes at all, and keep in a confidential locked file, for reference later then at all?

Ketzel
08-22-2016, 02:07 AM
the prosecution's witnesses is actually lying, but the prosecution doesn't know it. The reason why the client tells his attorney this, is so the attorney knows, just in case. The defense attorney, doesn't want to have his client go on the stand and lie or give false evidence or anything. The defense attorney does not know that one of the prosecution's witnesses is lying though, but does not tell anyone, cause he figures he might as well let the prosecution's witness, lie to help his case.

So if a defense attorney knows this, he would not write it in his notes at all, and keep in a confidential locked file, for reference later then at all?
Well, I wouldn't have. As already mentioned, clients lie to their lawyers all the time. I may or may not have believed my client when he claimed the prosecution witness was lying, but if I was inclined to believe it, and it would have helped my client's defense, I would have checked it out. If I confirmed the witness was lying, and that would help my client's defense, I would have used it to cross-examine the witness and destroy his credibility. I can't see any reason why I'd keep that information to myself under the circumstances. (?)

ironpony
08-22-2016, 02:19 AM
Well even if the client does not tell his attorney that the prosecution's witness is lying the attorney is going to get his client's version of the story, then he is going to get the prosecution's side. So the defense lawyer will still be able to figure out that the prosecution's witness is lying just from hearing other facts of the story and comparing it to what the client as to say.

If defense attorney lets all the information out though, then he will incriminate his own client though. The witness is actually a corrupt cop, who knows too much and knows what really happened. But he is not going to admit to any corruption, and the prosecution does not know he is corrupt at all, and they think that have called a credible witness. But the defense attorney has figured this out from hearing the client's story and comparing it to the prosecutions evidence.

But the defense attorney cannot tell the court that the cop is corrupt, because that will incriminate his own client. It will give the police more evidence to work off of, to connect the corrupt cop to the defendant, which will incriminate the defendant more. So the defense attorney, has to keep it to himself, to protect his client, doesn't he?

jclarkdawe
08-22-2016, 03:11 AM
Let me suggest a better way to get from here to there.

The police officer, a couple of years earlier, was investigated by his internal affairs department, who ultimately decided he had not engaged in corruption. He was represented at that hearing by the attorney the defendant has hired. There's nothing wrong with that for the attorney, and happens. Cops know who the best criminal attorneys are in an area, and when they are in trouble, tend to go for the best. Because the charge was found to be unfounded, the case is sealed and removed from the police officer's record. But this doesn't mean the record of the case is destroyed, but is placed in the police department's long-term storage facility.

Somehow or other, the new case uses some of the facts from the police internal affairs department. During the defendant's trial, the police officer tells a story about the old case that is very different from his statement at the time or the facts or whatever. The lawyer knows the police officer is lying. Now because the file of the original hearing is sealed, the attorney cannot use that knowledge in this case. The police officer is not his witness, so the ethical rules are very unclear. And the testimony is favorable to his client in this case. Which means the attorney can't do a whole lot other than go home and do some drinking.

Your bad guy, who watches the defendant trial, notices the attorney's back suddenly stiffing when the police officer comes to a certain part of his story. He wonders why and looks through the police officer's official file. This is easily done by bribing another police officer to obtain it. But the bad guy is sure something happened, and decides maybe he should go looking through the storage facility and see what luck he has there. Indexing of files at storage facilities tend to be fairly complete, so that you can find things that you know nothing about.

I think this is much more plausible than the way you're trying to go at it.

Jim Clark-Dawe

Ketzel
08-22-2016, 05:09 AM
Well even if the client does not tell his attorney that the prosecution's witness is lying the attorney is going to get his client's version of the story, then he is going to get the prosecution's side. So the defense lawyer will still be able to figure out that the prosecution's witness is lying just from hearing other facts of the story and comparing it to what the client as to say.
The defense lawyer will know someone is lying, if the stories are inconsistent, but he won't necessarily believe it's not his client.


If defense attorney lets all the information out though, then he will incriminate his own client though. The witness is actually a corrupt cop, who knows too much and knows what really happened.
Assuming that the defense attorney is satisfied that the prosecution witness is a corrupt cop who will lie in his testimony, he still wouldn't have to say anything to the prosecutors. He would just have to establish that the witness is lying when he gets on the witness stand. The value of cross-examination is how much control it gives the attorney over what information the witness is required to provide. He would have to design a series of questions that avoided opening up the areas that may have a negative impact on his client, while still showing the witness is not truthful. But that's a pretty routine problem for a defense attorney to face. If he needs to destroy the credibility of the witness in order to defend his client, he will figure it out.


But the defense attorney cannot tell the court that the cop is corrupt, because that will incriminate his own client. It will give the police more evidence to work off of, to connect the corrupt cop to the defendant, which will incriminate the defendant more. So the defense attorney, has to keep it to himself, to protect his client, doesn't he?

I'm not sure why the bare fact that the cop is corrupt would incriminate the defendant? Also, if he's shown to be an unreliable witness, why would that prompt the prosecution to rely on his evidence even more? And while possible, it's logistically difficult for prosecutors in the middle of the case to send the police out to gather more evidence. Judges are not warm to the idea of pausing a trial, especially if there is a jury involved. And you can bet the defense attorney would be loudly opposing any delays. Also, you've said the defendant is convictable in this case because of the perjured witness, so I would think demonstrating the perjury would be a better strategic move than hiding it, from the client's perspective.

So to make a long answer short, were I in this situation, I still wouldn't be making notes about the witness my client claims will lie. I'll either not believe him and discount it, or I will believe him and prep a good cross. There'd be no need for a memo to the file detailing my client's opinion of the witness.

I like Jim's alternative take on this. Or, if there is some way to make it part of the story, maybe your guy has confessed to someone outside the legal system - a priest, a lover, his mother - someone who can be threatened, if blackmail won't work.

ironpony
08-22-2016, 05:37 AM
Okay thanks. The corrupt cop has pretty much no choice but to pretend to be innocent and act like is is testifying against the witness. The cop is on the prosecution's witness list and is called to the stand. So if the corrupt cop says he doesn't want to testify, or tells lies, to get the defendant off, he will be caught in them. Cause other innocent cops who are also called to the stand, will know if the corrupt cop is lying. The corrupt cop was there with him and has to tell a certain story to be believed.

As for Jim's alternative, Jim is suggesting that the bad guy is looking through a storage facility. Who is the bad guy? The defendant? Why is he wanting to know what happened, when he already knows?

jclarkdawe
08-22-2016, 05:41 AM
The bad guy is the one who breaks into the lawyer's office.

Jim Clark-Dawe

ironpony
08-22-2016, 05:51 AM
Okay thanks. The corrupt cop has pretty much no choice but to pretend to be innocent and act like is is testifying against the witness. The cop is on the prosecution's witness list and is called to the stand. So if the corrupt cop says he doesn't want to testify, or tells lies, to get the defendant off, he will be caught in them. Cause other innocent cops who are also called to the stand, will know if the corrupt cop is lying. The corrupt cop was there with him and has to tell a certain story to be believed.

As for Jim's alternative, Jim is suggesting that the bad guy is looking through a storage facility. By the bad guy, you mean the MC right? Well even if the corrupt cop had a case file from before, it's not really enough to prove to the MC that, the cop was bad, is it? The case was dismissed cause there was not enough evidence.

In my scenario, the MC goes through the lawyer's case notes, and find out exactly how the corrupt cop was bad and what he did. If the MC just goes to a storage facility, and finds that the cop MAY have been bad, that is not really very specific to help the MC, and it would be just a long stretch of a hunch to suggest that this cop's corrupt is somehow connected to the defendant.

I mean the MC gets this idea by seeing the defense attorney's back stiffen as well. It just seems like a long stretch of a hunch of what if, that the MC probably wouldn't risk his life over later on, compared to more definitive proof, would he?


I'm not sure why the bare fact that the cop is corrupt would incriminate the defendant? Also, if he's shown to be an unreliable witness, why would that prompt the prosecution to rely on his evidence even more? And while possible, it's logistically difficult for prosecutors in the middle of the case to send the police out to gather more evidence. Judges are not warm to the idea of pausing a trial, especially if there is a jury involved. And you can bet the defense attorney would be loudly opposing any delays. Also, you've said the defendant is convictable in this case because of the perjured witness, so I would think demonstrating the perjury would be a better strategic move than hiding it, from the client's perspective.

The cops corruption is connected to the defendant, so if the corruption is exposed it opens a door to lead to the defendant's incrimination. And if the corrupt cop were ever charged with corruption there is always the chance he could cut a deal and turn in the defendant, so the defense attorney has that worry about as well, if he were to expose the corrupt cops involvement, and thereby getting him caught and arrested.

The corrupt cop is not shown to be an unreliable witness to the prosecution. The prosecution has no idea of his connection to the defendant and just called him to the stand as a witness on the case. But they have no idea that he is directly connected to the defendant in the criminal activity.

And this is not a trial but preliminary hearing, at least that is what I was thinking.

Helix
08-22-2016, 06:51 AM
Warning: Gratuitous advice follows. Feel free to ignore.

Ironpony, you've been posting variations of the same few topics over at least three different writing forums for...well, quite a long time now. From an outsider's perspective, it seems as if you're not moving forward. You're Carroll's Red Queen. And I think it's because you're all about the Plot and not about the Story.

Here's film critic Mark Kermode on Jaws (https://www.theguardian.com/film/2015/may/31/jaws-40-years-on-truly-great-lasting-classics-of-america-cinema):


Jaws is not about a shark. It may have a shark in it – and indeed all over the poster, the soundtrack album, the paperback jacket and so on. It may have scared a generation of cinemagoers out of the water for fear of being bitten in half by the “teeth of the sea”. But the underlying story of Jaws is more complex than the simple terror of being eaten by a very big fish. As a novel, it reads like a morality tale about the dangers of extramarital sex and the inability of a weak father to control his family and his community. As a film, it has been variously interpreted as everything from a depiction of masculinity in crisis to a post-Watergate paranoid parable about corrupt authority figures.

So what is at the heart of your story? Is it about the difference between justice and law? Is it that desperate times require desperate measures? Is it a meditation on closure? What is driving the characters? What is giving your story a coherent structure and pushing it to its only satisfactory conclusion?

jclarkdawe
08-22-2016, 06:55 AM
Ketzel makes a very good point. The amount of control an attorney has in the courtroom over a witness is amazing. I was able to make a woman look like an idiot because she couldn't find all of her kid's report cards.

When I'm cross-examining a witness to portray him as a liar, I get to choose where that's going to be. I probably won't go for anything major, because the witness is prepared for that. Let's say I've got a client who is accused of robbing a store. Supposed eye-witness positively identifies my client as the one. Witness's story is that he was walking to the store, met a friend, then went into the store. Not surprisingly, he really doesn't remember who the friend was. (Being involved in a crime scene tends to make you forget a lot of things as you're crapping your pants.)

So if he doesn't testify on direct to who the friend was, I'll get him to give the friend a name early on in his testimony. Then I'll wander off point for a while, pinning him down to all the exact details he knows about the robbery. Then I'll come back to the friend, but it will still be casual. I'll ask something like, "Now, you said Dave was the friend you met outside the store. Would he have been able to see the alleged robbery?" Most witness will focus on the last part of the question, not the name. And he'd previously identified the friend as Joe.

And we'll discuss for a while whether or not Dave could have seen into the store. We'll wonder why he didn't call the cops if he could see into the store. And then I'll ask him point-blank why he said his friend was Joe and now the friend is Dave. I'll now give him ten or fifteen minutes to figure out how to resolve this problem. Then I sit down and shut up.

What you do is listen to the witness on direct and you listen for points where the witness hesitates or is unsure. You get him committed to an answer, and then you develop the point. The more you give someone an opportunity to talk, the more likely you are to find an opening to pounce on later on.

Next time I mention the witness will be in my closing, where I point out how well the witness supposedly remembered the crime, yet couldn't even remember his friend's name. And then I simply say it make you wonder what else he lied about.

Now there's a bunch of different approaches, and you vary this depending upon the attorney's personality and the witness. But with a corrupt cop, I know he's going to mess up some of the details if I let him talk long enough. It's not on the big stuff, but the little details.

But the big thing to remember here is that even with professional witnesses, and a police officer is a professional witness, it is that the attorney controls the situation. That being said, a professional witness listens very carefully to the questions. I was called as a witness in a domestic violence case, where the bail condition of the husband was that he not see his wife. I was representing the husband in an abuse/neglect case, and the issue was whether the husband was in fact having contact with his wife. I listened very carefully to the questions and answered only what was asked. It took five questions that I had seen the husband and wife together at court. After about an hour, when the prosecutor started losing it and started asking me questions that called for material covered by attorney-client privilege (in other words, when asked if my client had ever told me whether he had met with his wife, I asserted attorney-client privilege, the judge called the two attorneys into chambers and after a meeting, it was decided that this hearing wasn't going to go anywhere.

A year or so later I saw the prosecutor, who I liked. My client was now enjoying the creature comforts of the New Hampshire State Prison on another charge, so none of this mattered anymore. I explained to her that she had asked me if I had ever seen my client with his wife, which I had during court hearings. What she failed to ask me was whether I had HEARD my client with his wife. They both loved to call me. (She liked me better than her attorney in the abuse/neglect case.) And whenever one of them called, the other one would be screaming in the background, critiquing the phone call.

Yeah, I knew my client was living with his wife. But she never asked the right question. Because the wife was involved in the conversation, it was not covered under New Hampshire's Rules of Evidence, which differ from the rules for attorney privilege in the Code of Professional Conduct. However, the consensus of my advisers was that if she had asked the right question, I had to talk.

But this is very much the exception. Very rarely are the witness and attorney evenly matched.

Jim Clark-Dawe

ironpony
08-22-2016, 07:24 AM
Okay thanks. Well I already have the heart and theme of my story down, and I know what it's about theme and character wise. I have the story down, it's just the plot that's left now. It's more about desperate times require desperate measures. Hence a cop, breaking the law to get from one thing to the next in a case. Just when it comes to the plot, I am not sure how he would find out that one cop is corrupt. I could have him come up with the theory that one is corrupt, but a theory is just a theory, and not sure if that is enough to drive the character to risk his life to prove a theory so much... as oppose to the cop discovering direct proof, from one of the people who would know the truth.

Even if the cop went out to find the cop's past history in a storage facility, it would still be just theory, since there wasn't enough evidence from before was there? I don't want the corrupt cop to have any corruption suspected on him too much though.

Because later when the corrupt cop is killed by the crooks that was involved with, other cops go out and get revenge on the villains for murdering the corrupt cop and getting away with it. If the cops suspected the corrupt cop of being corrupt and being possible involved with the villains, from a past history, they wouldn't be near as eager to go out and avenge him. They would not avenge their murdered friend if they had reason to suspect that he may be one of 'them'.

So I would like to write it so that the avenging cops are avenging their friend, cause they do not know that he was corrupt with the villains. Of course they find out later. But I do not want them suspecting he was corrupt from a past history, before they take revenge, cause otherwise they wouldn't take revenge.

Another possible issue with the MC seeing the lawyer tense up in court and getting the idea, is that the MC is also a witness in the case, and would therefore, not be an onlooker in the court room, since prosecutors normally keep witnesses out of the courtroom, if they are witnesses, and prevent them being onlookers.

Cath
08-22-2016, 02:18 PM
Okay, you're roaming into brainstorming now, ironpony. I'll ask you to keep that to the brainstorming forum.

ironpony
08-22-2016, 10:01 PM
Sorry will keep the brainstorming out of it.

cornflake
08-22-2016, 10:17 PM
Have you written anything yet? All of this minutiae isn't going to show up on screen unless you've got an hour of discussion over evidentiary procedure.

susangpyp
08-22-2016, 10:31 PM
As an attorney, I would never write that down. Even though attorney-client communication is privileged, there are certain conversations, I wouldn't ever write down or I sometimes use a shorthand that only I understand. I don't know any attorney who makes copious notes and shares them. Even when I worked on large cases for large law firms, we had team meetings and were told to never put things in writing esp when we were the defense. A junior associate once alluded to something in email that the client had told them and, although it was fairly cryptic, the senior partner had a complete fit about it.

jclarkdawe
08-22-2016, 10:57 PM
Have you written anything yet? All of this minutiae isn't going to show up on screen unless you've got an hour of discussion over evidentiary procedure.

Let me mention here that the beauty of this forum is how many people benefit from a discussion. I've gotten several rep comments on how helpful people have been finding Ironpony's threads.

Jim Clark-Dawe

ironpony
08-23-2016, 12:38 AM
Yes thanks, the sight has been very helpful. Thank you to everyone for the advice. I really appreciate it. If my threads have been helpful to others, that's good, I appreciate that as well.


As an attorney, I would never write that down. Even though attorney-client communication is privileged, there are certain conversations, I wouldn't ever write down or I sometimes use a shorthand that only I understand. I don't know any attorney who makes copious notes and shares them. Even when I worked on large cases for large law firms, we had team meetings and were told to never put things in writing esp when we were the defense. A junior associate once alluded to something in email that the client had told them and, although it was fairly cryptic, the senior partner had a complete fit about it.

It just seems like kind of a legal paradox, I am trying to understand. The conversations are privileged and protected, yet at the same time, no one is allowed to write anything down, even so.

jclarkdawe
08-23-2016, 01:55 AM
It's really not a paradox. Jim points out earlier in the thread that the attorney client privilege only covers the attorney. If someone other than the attorney - a secretary for example - learns the information, they can be compelled to reveal it. They are not covered by the protection. Which makes it risky for the attorney to write it down.

Cath -- I didn't explain that as well as I should. An employee of mine cannot be compelled by the police or a court to divulge anything that he or she learned during my employ, and will usually be considered to have a broader privilege than I do. This is because an employee, unless that employee is another attorney, does not know what is defined by me, as the attorney, as a privileged piece of information.

However, if an employee of mine divulges anything of his or her own volition, than the only consequence available is to fire the employee, absent a contractual agreement pursuant to the employment.

Which makes a lot of sense to me and the other attorneys who have responded to this thread and probably makes no sense to anyone else.

We don't write down the secrets because we've seen the consequences of writing down something, even if it is supposedly "secret." For example, when Ford accidentally released a written "secret" internal memo, it ended up spending millions on the Ford Pinto gas tank cases. The more ways people can find out a piece of information, the more ways that information can get out. However, if a client accuses me of divulging confidential information, my answer is very simple. I did not write it down, I never write anything like that down, and I didn't tell anyone about it. If the information was released, it was not because of me.

Jim Clark-Dawe

CassandraW
08-23-2016, 02:33 AM
Yes thanks, the sight has been very helpful. Thank you to everyone for the advice. I really appreciate it. If my threads have been helpful to others, that's good, I appreciate that as well.



It just seems like kind of a legal paradox, I am trying to understand. The conversations are privileged and protected, yet at the same time, no one is allowed to write anything down, even so.

You're "allowed" to write it down, but it's generally unnecessary and it could backfire, and, well, everything we've said in this thread.

My advice -- read what we've said, accept it, and stop trying to find some weird loophole that will make your idea work. It doesn't and it won't. The end. Find another way. Jclarkdawe suggested a good one.

jclarkdawe
08-23-2016, 03:56 PM
As far as the "weird loophole" is concerned, this is why we ask what your story needs, not what you're looking for. We're very good at finding a way to make something work, although it might not be quite the way the person originally wanted. There are some people with incredible subject matter knowledge here, and we do know all the weird loopholes out there.

There are some weird loopholes out there on attorney-client privilege, but nowhere near where the original poster wishes to go. Nearly all of them involve businesses and confidential documents. There have been a couple of break-ins where confidential documents have been stolen from attorneys' offices. Some of these confidential documents can be worth millions, or even hundreds of millions. For example, the confidential document that shows the formula for Coke, or some drugs during their process of gaining approval, can be worth incredible amounts of money.

Another area where business attorneys have gotten into major troubles involving confidential documents is discovery rules during law suits. The attorney is either given or sees a document that is confidential prior to or during discovery that is clearly covered in the discovery request. The confidential document is then not released to the other party as part of the discovery request. The document is then discovered in another way and the fact that the attorney knows about the document is revealed. Attorneys have been disbarred in this type of situation.

Attorneys that represent criminal defendants are among the most paranoid people in the world. It is not unknown for the government to mess with us. We frequently annoy large sections of the population. And most importantly, we know what happens when things go wrong. Try standing next to a man or woman who has just been told that he or she is going to be spending the rest of their life in a box six feet wide and ten feet long, where anyone can watch them take a poop. After a while, it does effect your views of the world.

Jim Clark-Dawe

Cath
08-23-2016, 05:48 PM
Cath -- I didn't explain that as well as I should. An employee of mine cannot be compelled by the police or a court to divulge anything that he or she learned during my employ, and will usually be considered to have a broader privilege than I do. This is because an employee, unless that employee is another attorney, does not know what is defined by me, as the attorney, as a privileged piece of information.

However, if an employee of mine divulges anything of his or her own volition, than the only consequence available is to fire the employee, absent a contractual agreement pursuant to the employment.

Which makes a lot of sense to me and the other attorneys who have responded to this thread and probably makes no sense to anyone else.

We don't write down the secrets because we've seen the consequences of writing down something, even if it is supposedly "secret." For example, when Ford accidentally released a written "secret" internal memo, it ended up spending millions on the Ford Pinto gas tank cases. The more ways people can find out a piece of information, the more ways that information can get out. However, if a client accuses me of divulging confidential information, my answer is very simple. I did not write it down, I never write anything like that down, and I didn't tell anyone about it. If the information was released, it was not because of me.

Jim Clark-Dawe
Thanks for clarifying, Jim!

ironpony
08-23-2016, 09:27 PM
Okay thanks. I can use Jim's suggestion and have the MC cop notice that the attorney is questioning the corrupt cop on the stand, and maybe figures out he is corrupt by watching and putting the pieces together maybe instead. However, the MC cop is a witness in the court case as well, and the prosecutor would logically not want him to be onlooker I am assuming.

So I didn't know that attorney's are not allowed to represent clients if they know they are guilty. I thought that the it was okay for them to know and they would just point out errors in the investigation, to try to create reasonable doubt. I was watching the show The People VS. OJ Simpson, and Simpson's lawyer Robert Shapiro asked Simpson 'did you do it', saying he would not judgement, but wanted to know before moving forward and said he it can help with the case if he knew, if I remember correct.

But I guess lawyers are not suppose to ask that then. So if a lawyer cannot know that his client is guilty in order to legally give a defense, why do a lot of lawyers avoid putting their clients on the stand? If the clients are suppose to lie and say they are innocent in order to get a lawyer that can defend them in the legal capacity, then why do lawyers avoid putting them on the stand, if the client lies and says they are innocent? Do the lawyers just have doubts too often?

CassandraW
08-23-2016, 09:53 PM
Read my post again. Of course they are allowed to represent guilty clients. Defendants have a right to an attorney. But if they've confessed their guilt to you, your options in how to defend them are more limited -- you can point out the prosecution didn't do its job, but you can't put up alibi witnesses, knowing their testimony is false, have your client take the stand to say he's innocent, etc. because you know that's a lie.

Suspecting your client may not be being wholly truthful to you is not the same as knowing for sure he's guilty and knowingly putting forward false evidence in his defense.

Either way, you can defend your client by saying the prosecution failed to prove the elements of the crime.

ironpony
08-23-2016, 10:05 PM
Oh okay then. I was planning on writing it so the lawyer plans on trying to raise reasonable doubt in the prosecution's proof. But he not lying at all or anything like that. Even if questions the corrupt cop, and the client tells him the cop is corrupt, he will not ask the cop to lie or anything, he will just know not to ask certain questions, where as if the corrupt cop answers, it will implicate his client.

CassandraW
08-23-2016, 10:34 PM
Do not forget the corrupt cop will be cross examined. The other attorney will almost certainly notice his opponent carefully stepping around questions. We attorneys are good on the fly and we spot these things. And damaging testimony is devastating when it comes out on cross. Moreover, the attorney could not necessarily prevent the witness from straying into other areas.

Unless I had no other choice, I wouldn't call such a witness.

Also, I'm fuzzy on what your planned direct testimony and questioning look like, but I'm not so sure your lawyer's careful stepping wouldn't still end up eliciting what amounts to false testimony.

ironpony
08-23-2016, 10:40 PM
Well the defense attorney is not calling the witness, the prosecution is. The prosecution is not aware that their witness is a corrupt cop who is connected to the defendant. They believe they are calling an innocent cop to the stand who was part of the case, but had no choice to be, since he was given the assignment. The corrupt cop is going to lie to save himself, when answering some of the prosecutions questions anyway. The defense attorney cannot stop that, but he can have some control over his own questioning, right?

Hamiltonburger
08-23-2016, 10:51 PM
My dad and husband are attorneys.

If you as a lawyer know that your client is guilty because the client tells you so, you can't take the case if he or she wants to plead not guilty. If you did, you would be helping them commit perjury. As an officer of the court, you can't participate in a crime, and you have an obligation to report them.

Lawyers usually have to keep records for ten at least years or so. Most are kept both electronically as well as physically in big case files.

jclarkdawe
08-23-2016, 11:00 PM
You need to read very carefully what we write. Skimming does not work. We are dealing with very complex and technical issues, and although we're trying to keep this in something that people can understand, it's hard to understand and often relates to very small differences. To give you an example, a highway has a 65 mph speed limit. At 65 you are fine, at 66 you can get a ticket, have to pay some money, and get points on your license. To me, this point is very simple and understandable, to most people it is not.

Sequestered witnesses are often allowed to sit in the courtroom after they testify. Once they testify, it doesn't tend to matter.

In New Hampshire, if a prosecutor knows that a cop is corrupt, he or she must advise the defense attorney. We actually have a list of cops suspected of corruption or lying on the stand. I assume many jurisdictions have the same rule. This ignores the fact that frequently attorneys who practice in an area know who the bad cops are.

Simpson, to the best of my knowledge, has never, ever admitted to killing his wife. He definitely did not admit to it during his trial. The closest he's come is his book. And I don't think he ever quite admits to it. In high profile cases, frequently you do ask your client about their guilt. That's because by the time you ask, you know that even if the prosecutor has a videotape of your client offing someone, your client will either tell the truth and that's the way your case plan goes, or more likely, he's going to lie through his teeth, even as he watches the videotape, and say he didn't do it. Celebrity defense is very different from most cases. There you have to deal with the fallout. Getting someone acquitted might avoid jail, but take a look at Simpson. That case destroyed him. Your job is not only to help your client avoid jail, but also mitigate the damages so that he or she can go back to where they were beforehand. Take a look at the Lohan case.

I only had a couple of clients who admitted to a crime early on. Most in the face of impossible to disprove evidence maintained their innocence. I'd be really wondering about the client who confessed to me early on. That usually means there's something else in play. But I've represented many people I knew were completely guilty. Most end up taking a plea. If we go to trial and they've confessed to me, it's a reasonable doubt defense. If they haven't confessed, then we put on an actual defense.

Most people suck as witnesses. It's hard to do well. A defendant has to do it well. He or she has to sell the jury on his or her story. Most defendants can't do this. That's reason number one why we don't call them as clients. Also, in most cases, their criminal records will come into evidence. That's fine in a prison assault case, but usually is something you want to avoid.

In domestic violence cases you definitely get a lot of funky testimony. The victim who told the police she was brutally attacked by your client now says she fell down the stairs. What do I or the prosecutor believe happen? It doesn't matter. She's probably lying at some point, but neither side gains a lot pointing that out. I say she was mad at my client at the time of the incident and that's why she made up her story of him attacking her. The prosecutor says she told the truth on the night of the incident, and is lying now because she's afraid of my client. Take your pick. Either might be true, or it might be something else that occurred.

Jim Clark-Dawe

MNLynx
08-23-2016, 11:45 PM
Defense is about damage control whether one is dealing with criminal or civil litigation. Few clients are completely innocent victims of unfortunate circumstance and even the guilty SOB with the smoking gun is entitled to a competent and energetic defense. In criminal law, the prosecution has to prove guilt beyond a reasonable doubt; the defense doesn't have to prove innocence. Perjury is "the offense of willfully telling an untruth in a court after having taken an oath or affirmation." Defendants in a criminal trial are rarely put on the stand so even if an attorney knows the client is guilty, there is no perjury involved if the defendant sits quietly at counsel table and behaves him/herself.

Re: Della Street v. Blabbermouth Incompetent Paralegal Staff

If an attorney has a legal secretary/legal assistant who can not be trusted 100%, it is time to find new employees. I was a certified legal assistant for fifteen years. The code of ethics for my profession is as solemn as that of an attorney. I have a four year degree, graduate work, and certification from a highly regarded Legal Assistant college program.I sat through two eight hour days of exams to get my NALA (national) certification and fifty hours of CLE every five years to keep the same.

Everything pertaining to a case from medical records to attorney notes was kept in files in my office and as a matter of course, I read and summarized every substantial document in the files and knew every bit as much about a case as the attorney of record. I interviewed clients, witnesses, and expert witnesses. The client would be as likely to confess to me as to the attorney (more likely in same cases) and CLAs are bound under attorney/client privilege as surely as is the attorney. An attorney who lies (even by omission) to his CLA about a case is shooting himself/herself in the foot and if I'd ever discovered that one of my attorneys was doing this, I'd have found myself a new job.

ironpony
08-24-2016, 12:13 AM
Okay thanks for the input. When you say put on an actual defense, as oppose to a reasonable doubt defense, do you mean using the client's alibi as a defense more so?

Also in my story, even if the MC testifies first, before the corrupt cop, would he be able to be on onlooker, if this is just a preliminary hearing? Cause assuming that a trial will likely follow, the MC will have to testify again then. So is it okay for a witness to be an onlooker after testifying at a preliminary hearing?

I watched some of the O.J. Simpson trial, and I noticed that when Mark Furhman was recalled to the stand, he was sitting as an onlooker, after having already testified, even though he could have been recalled, which he was.

So does the same rule apply here, at a preliminary hearing?

MNLynx
08-24-2016, 12:25 AM
Have you ever observed a trial? If not, quite possibly the most useful thing you can do is attend a few and see how things progress. It is a pretty fascinating process.

ironpony
08-24-2016, 12:27 AM
Okay thanks. I haven't gone to any yet in person, I just watched a lot on TV when it's taped. Most cases are very open and shut and they do not deal with the unique circumstances as I have in my plots.

MNLynx
08-24-2016, 12:35 AM
Oh, God. TV. Hie thyself to the nearest courtroom, sit on the nice wooden benches, smell the processed air, and revel in reality. If nothing else, it will prepare you for the shock of getting called for jury duty someday.

ironpony
08-24-2016, 12:46 AM
Okay thanks. By TV I mean actual criminal cases though, not fiction. There are not a lot of trials in my city though, and a lot of criminals plea bargain here. I guess I feel it would be a longer process, when I want to start writing. But I will look out for the next preliminary hearing or trial.

MNLynx
08-24-2016, 12:58 AM
I know you did. Or at least I assumed you meant actual cases. Even so, TV is not the same as being there. I was in awe the first time I sat through an entire trial.

CassandraW
08-24-2016, 01:00 AM
Writing about a complicated (and far from routine) murder trial based on watching a few bland criminal trials on TV is like writing a survival story set in an African jungle based on watching a few nature shows.

I'm a lawyer and have spent some time in a court room, and yet (since I don't specialize in criminal work and never participated in a murder trial), I would feel I needed to do some serious homework to effectively write a story like the one you want to write.

You have no grounding at all in how our legal and criminal justice system works. It's clear from your questions you have a ton of learning to do before you are ready to begin writing.

If you want to just start writing, write about something you know.

charlene
08-24-2016, 02:35 AM
There are some situations when an attorney might write or record an incriminating statement, but most of the time the attorney remembers it. In fact, the more incriminating the statement, the less likely it is to be recorded. Imagine you’re talking to a client charged with murder and he mentions the ax just happened to slip out of his hand and into the victim’s head. Do you really need to write that down? An incriminating statement sticks to your memory like glue because your first thought is f***, there goes my case.

But as a practical matter, a lot of clients either don’t tell their attorney the truth, or they’re very careful about not revealing the truth because they don’t want their attorney to think they’re guilty of whatever it is they’re accused of doing. Sometimes they can’t admit it to themselves. To a defendant, it’s more important for their attorney to believe them innocent, than to get good, sound legal advice. They think their attorney will fight harder for them if the attorney believes they didn’t commit the offense.

Occasionally there will be a client who is completely truthful, and when that happens, their communication is completely protected by the attorney-client privilege, meaning they prevent someone from using the court to gain access to the communication. But a defendant's admission of the facts isn’t usually a confession like you envision. After reviewing the police report with a client, I’ll usually ask the defendant if the police report is accurate or inaccurate, and if it’s inaccurate, tell me how. Usually clients will say it’s accurate with a few discrepancies, but they rarely flat-out confess, so it’s unlikely that your character will find incriminating statements in an attorney’s file like you’re anticipating.

In fact, I used to review the “facts” in the police report with my client first, just to cut down on any outrageous lies my client was prepared to tell me, i.e., I let my client know the robbery he’s accused of committing was recorded on surveillance cameras, he was identified by a neighbor he’s known for the past 10 years, he dropped his wallet fleeing the scene, and he’s wearing the exact same hat in court that he wore when he robbed the convenience store. That way my client doesn’t have to embarrass himself with the lie he was preparing to tell me by claiming he was at a birthday party for his 91-year-old grandmother across town.

With respect to defendants who intend to commit perjury, I’ve had many, many clients I strongly suspected were not telling the truth, but I was only absolutely sure about one. As an officer of the court an attorney cannot elicit false testimony, but at the same time, the defendant has an absolute right to testify, and when he testified, the only thing I could do is ask, “So what happened next? And then what happened?” That way I haven’t abandoned my client and it’s up to the jury to be discerning enough to know that the defendant is lying.

All that said, there is one situation where I’ve written down an incriminating statement. Not so much in private practice, but as a public defender, cases are fluid and move from one attorney to another. Whatever incriminating statement is conveyed to one attorney in the office has to be known to all attorneys who may end up with that case. So, in an office where there’s more than one attorney who might handle the defendant’s case, his or her statement would be recorded somewhere in the file. It wouldn’t be clear as day necessarily, but somewhere, likely in shorthand, but somewhere in the file. And in a big office, an active file could be found on an assistant’s desk waiting to be refiled, an attorney’s desk, an attorney’s car, or if the file is inactive, i.e. after the case is complete, the file is likely under lock and key in a file drawer.

One additional thought. When a defendant fires their attorney, the attorney has an obligation to transmit the client’s file to the new attorney. Transmitting the file to a new attorney might create the opportunity you’re looking for. Maybe your MC could pretend to be an employee for an attorney courier service to gain access to the file.
Just a thought.

Hope that helps.

charlene
08-24-2016, 03:01 AM
On the subject of preliminary hearings, you'll find that states have different rules, but in California, if no one says anything, anyone can sit in on the preliminary hearing. But what really happens is before the prelim starts, an attorney makes a motion to remove witnesses from the courtroom during the hearing and the motion is always granted. If the magistrate (at a prelim, the judge is acting as a magistrate) grants the motion, everyone is required to leave. There's a penal code section that allows the investigating officer to remain in the courtroom during the hearing and the magistrate usually grants the DA's request for the investigating officer to remain.

cornflake
08-24-2016, 05:01 AM
A lot of everything everyplace plead out. A very, very small percentage of cases ever make trial, in any state.

ironpony
08-24-2016, 01:24 PM
Okay thanks. Well for my story, I can write it so that the MC cop finds out who the corrupt cop is a different way, than by searching the lawyer's files. There should be other ways, and it shouldn't be a problem. Thanks for all the information.


On the subject of preliminary hearings, you'll find that states have different rules, but in California, if no one says anything, anyone can sit in on the preliminary hearing. But what really happens is before the prelim starts, an attorney makes a motion to remove witnesses from the courtroom during the hearing and the motion is always granted. If the magistrate (at a prelim, the judge is acting as a magistrate) grants the motion, everyone is required to leave. There's a penal code section that allows the investigating officer to remain in the courtroom during the hearing and the magistrate usually grants the DA's request for the investigating officer to remain.

So the investigating officer is allowed to remain even if he/she is a witness as well? What about the arresting officers? Can they be onlookers if they are on the prosecution's witness list as well? Cause the MC is an arresting officer, not the investigative one.

charlene
08-24-2016, 02:46 PM
The DA will designate an officer as the investigating officer to sit at counsel table during the entire preliminary hearing. It could be any officer – the arresting officer or investigator. It’s usually an officer who will testify and likely to be the most helpful during the hearing. If a witness lies or there are any factual discrepancies in the DA’s case, ideally the designated officer will be able to answer the DA’s questions during the hearing, so the DA usually designates the officer who knows the most about the case. The designated officer usually testifies, but it’s not required. In a state where hearsay is allowed in a preliminary hearing, it’s unlikely that more than one officer will testify, but as an example, in a case where there are 2 deputy sheriffs, 2 police officers, and 2 highway patrol officers who all have some connection to a case and they are all scheduled to testify at the prelim, the DA will chose 1 officer to designate as the investigating officer to sit a counsel table with the DA, and the rest will sit outside the courtroom waiting to be called as witnesses. Technically the other officers could be onlookers during the prelim, but more than likely the defense attorney would make a motion to exclude all other potential witnesses preventing the officers from being in the courtroom during the preliminary hearing.
It usually happens like this:
Judge: Are both sides ready to proceed?
DA: Yes, your Honor.
Attorney: Yes, your Honor.
Judge: Are there any motions or preliminary matters?
Attorney: Yes. Defense moves to exclude witnesses pursuant to § 867.
DA: I designate Officer Smith as my investigating officer to remain at counsel table.
Judge: Granted. Call your first witness.

Hope this helps.

ironpony
08-25-2016, 02:06 PM
Okay thanks. This helps. Well in my story I want two officers to testify. The corrupt one, who the DA does not know is corrupt, and another one, who can be the designated one, who will testify as well. Does that ring true to have the designated one testify as well as the other? I could write it so that maybe only one does too, but you gave me some good ideas there. Thanks.

charlene
08-25-2016, 04:39 PM
Definitely rings true. Nothing unusual about 2 officers testifying as long as their testimony isn't redundant and they're not testifying to the same facts.

ironpony
08-25-2016, 09:29 PM
Well basically one officer stumbles upon a crime, sees some things, and then makes a bust after calling for back up. He testifies, and the other officer testifying is one of the back up officers, confirming what the other cop is saying. But isn't it good to have two or more witnesses confirm the same story, cause it makes them more reliable, instead of just one witness only? That way, a defense attorney will have a tougher time discrediting a witness, if he has to to discredit two. At least that is what I thought about the point of using more than one witness. But maybe it is kind of redundant.

charlene
08-26-2016, 05:54 PM
Testimony at the preliminary hearing is proof of just the basic elements of the offense so the judge knows there’s at least minimal evidence to hold the defendant to answer for a trial. The prelim for a complicated case can take a day or two, but for most run-of-the-mill cases, a prelim is about 20 minutes. That’s why only 1 officer testifies. When more than 1 officer testifies, it’s because they’re testifying to facts that prove different elements of the offense. They don’t testify to corroborate each other at the prelim. That would happen at trial. For example, at a prelim where the defendant is charged with felony DUI, the only testimony at the prelim is usually the officer’s testimony that he/she saw the defendant driving, the defendant’s blood-alcohol level, and the defendant’s priors. The trial might last a couple of days, but the prelim would take about 15 minutes.

That said, please don’t feel compelled to follow exactly what I post. You’re writing fiction. Do what works best for you. I seriously doubt people would stop reading your book because 2 officers testify at the prelim. Most people don’t have extensive knowledge of the penal code or the rules of evidence.

Good luck.

ironpony
08-28-2016, 01:02 AM
Okay thanks. What if the client does not confess to the attorney that he is guilty of the crime, but he mentions certain things about it that he saw, without mentioning his own involvement? Like would the client tell his attorney that he is not guilty of the crime and was just there at the time he was arrested as an innocent bystander. He tells the attorney that one of the cop's who is testifying, is actually a corrupt cop, who was there and was part of the actual crime, and that he has leverage on the corrupt cop. The leverage being that he knows the corrupt cop was a part of it and has proof. Would an attorney write that down in his notes, that the client did not commit the crime, but that he knows that the corrupt cop was there and was part of it, and that he has leverage on the corrupt cop? Would the attorney still write down that part likely, and just write down that the client was an innocent bystander who was not part of it?

jclarkdawe
08-28-2016, 03:11 AM
Clients tell you all sorts of things, some relevant, most not, some believable, most not. Some attorneys write down just about everything, others take minimal notes.

Most of my clients feel that cops are corrupt. Some will even give me evidence of the fact. Most of their facts are about as useful as tits on a dead bull. It's only if we're putting together a case that is based upon the cop being corrupt that I'd even begin worrying about the issue.

I've had to deal with corrupt/brutal police officers. Most of the work is finding the public record that will sell this to other members of the law enforcement community. What my clients say usually amounts to nothing. I noticed that I was seeing a lot of resisting arrests from a certain officer. I knew something was wrong, as I knew the standards of the police department. I waited until a guy I'd represented before, who is doing life on the installment plan, got himself arrested again, and low and behold, he had a charge of resisting arrest. I asked my client what the hell happened, as he had never, in a long career, had a resisting arrest. This is a guy who held out his hands to be cuffed.

I did not take any notes of that conversation. All I did was talk to the prosecutor for the police department (who had been an officer in the department before being promoted). I asked him if he'd ever arrested my client. He said I had and I asked if there had been any problem. (I already knew the answer to both of these questions from my client.) He said no problem and I asked so what did he think had gone wrong that my client was now charged with resisting. I then mentioned it seemed like their resisting arrest cases were going up. Then I hung up and let him think.

Over the next month, I had several resisting arrest cases get dismissed, and heard the police officer was moving to a new department, one I didn't deal with.

Notice how none of us ever really talked things over and notice how everything worked out in the end. That's what usually happens in cases involving corruption.

I don't know what to tell you. You're dealing with complex issues, and haven't done the research. Starting point for police corruption is reading SERPICO.

Jim Clark-Dawe

ironpony
08-28-2016, 11:13 AM
Okay thanks. This is good stuff to learn. I actually thought that lawyers sometimes would get much more involved in their clients cases, even if they knew the client was guilty. I was watching the movie The Departed and in that movie, the mob boss (Jack Nicholson), gave his lawyer, taped conversations between him and the corrupt cop moles, he has in the police department, and giving his lawyer the duty of holding onto them for him. Is this unrealistic and a lawyer cannot do that legally for their client?

jclarkdawe
08-28-2016, 05:29 PM
If the mobster is continuing to influence the police department, the attorney is violating professional ethics. That being said, some Mob lawyers weren't too careful and did engage in criminal activities.

Realistically I won't trust my attorney with that sort of information. It's way too easy to find my attorney. In this day and age, I'd have it held out of the US in safe deposit boxes in certain foreign banks. There are people who specialize in holding things and that's who I'd use in the US. Or bury it in my backyard.

I'll admit that most people who think they can hide things aren't too good at it. The fake key rock at your front door is the classic example. But most people wouldn't go to their attorney. Safe deposit boxes are a pretty safe bet.

In criminal cases, you're hired for the one case. You don't care whether your client is guilty or not. The only time I invested anything close to emotional was some of the young kids who I felt could be turned around. Otherwise, I would do the best I could for them in their case and that was it. This is very different from representing business clients, where frequently you have a long term and repetitive relationship.

There are basically a very few attorneys who work on a retainer relationship with one or more criminals. It's a high risk approach for the attorneys. They're going to be suspected of being involved in criminal activities and often end up being investigated. They are often used in books and movies, but are the exception to the rule.

Jim Clark-Dawe