CRIMINAL LAW FOR THE NON CRIMINAL LAWYER

By

Steven J. Scheinin, Esq.

Presented to the Baltimore County Bar Association Continuing Education

June 20, 2001

http://www.scheinin.com

INTRODUCTION:

    Of all lawyers licensed to practice in Maryland only 10% are trial lawyers
 

    Of all trial lawyers in Maryland, only 1% are criminal trial lawyers
 

    Most lawyers say they don't practice Criminal Law because they feel the stakes are too high.
 

  Your job is not to get the defendant off, but to make the State prove their case.

   If the State is required to prove 5 facts in a stop sign violation (identity of the defendant, violation of the law, visibility of sign, jurisdiction, and authority of the officer) then your job is not let the State get away with proving only 4.

 

    If the defendant is found guilty, your job becomes presenting all the good attributes of your client to minimize his punishment exposure.
 

CHARGING DOCUMENT:
 

  3 Types:
 

  Statement of Charges
 

  Criminal Information
 

  Indictment (words "grand jury" is redundant)
 

  All charging documents must have:
 

  Name of Defendant
 

  Date of offense
 

  Place of offense
 

  Crime charged
 

  Authorized signature
 

    Authorized Signature for
 

     Statement of Charges:  police officer, district court commissioner
 

     Criminal Information: state’s attorney
 

     Indictment: grand jury fore person
 

WHEN CLIENT FIRST COMES TO SEE YOU
 

    Don't ask if he committed offense – let him tell you his story
 

    He doesn't know law
 

    He might think he committed forgery, but he signed back and not front of check
 

    Don't put yourself in position of subornation of perjury
 

    Never let your client lie in court
 

  Don't have client send in back of traffic ticket
 

   Officer will not come to court
 

   Officer cannot say client was cooperative
 

   Without officer state cannot prove its case, even if client acknowledged guilt
 

   Therefore if officer not in court, you win
 

WHERE TO BEGIN
 

    If entitled to preliminary hearing request one (within 10 days from initial appearance)
 

    Review the Charging Document
 

    Get a copy of the police report (report number usually on charging document)
 

    Get copy of all police supplements
 

    Get copy of all witness statements
 

    File discovery
 

    File motions (speedy trial, suppression of evidence, confessions, etc.)
 

    If juvenile charged as an adult, file motion to waive to Juvenile Court
 

    Contact clerks office and have trial date set in (or postponed) at your convenience
 

TRIAL PREPARATION, KEY TO SUCCESS
 

    Look at the State’s attorney's file
 

       Look at front and back cover, both sides for notes
 

       Note phone numbers of witnesses (discovery will give you names and addresses)
 

       Look at each page and compare to your file (is page from police report missing)
 

       Do you have all witness statements (take tape recorder with you)
 

       Check for notes, witness reluctant or not available
 

  Decide if to your advantage to call State’s Attorney
 

       For minor cases there usually is no advantage
 

       In District Court an average criminal docket is 35 cases
 

       Calling the State’s Attorney may draw attention to your case
 

       Let the State’s Attorney find out his witness can't make it on the day of trial
 

       This gives you more bargaining power
 

  Don't hesitate to call State’s Witness
 

       You don't need permission of the State to talk to their witness
 

       Tell the witness who you are and that you represent defendant
 

       If witness does not want to talk, don't push
 

       Verify with police officer client was cooperative (if not, prepare argument why not)
 

       More defendants go to jail for failure to be polite to police than for crime charged
 

PRELIMINARY HEARING
 

  ALWAYS REQUEST PRELIMINARY HEARING  
        Rarely is a case dismissed at this level, but it is great discovery  

        Hearsay admissible  

        Good time to find out who gave statements, who police talked too  

        How did police first hear about crime (informant)  

        Was the informant an integral part of the transaction?  

        Testimony at PH cannot hurt you at trial, therefore ask the questions you don't know the answer.

Can impeach police officer with his testimony from PH

        Preliminary hearing might be the most important part in preparing your case,

        for that reason, State will take to Grand Jury
 

JUST BEFORE TRIAL
 

        Go to Courthouse and look at Court File
 

        Check charging document and verify that it is signed
 

        Check witness summons to see if any not served
 

        Look at any pretrial reports by probation dept. Will have client's criminal record
 

        If trying a case in an unfamiliar County, call Public Defender for lowdown on Judge
 

GUILTY PLEAS
 

        Guilty pleas are not binding on the Court

        Only plead guilty if there is a definite benefit to your client (no jail, pbj)

        Usually it is not a benefit to your client when the State says “plea guilty to main charge, drop all other charges and request sentence within guidelines”

        With exception of handgun, in most cases all other charges merge, and the Judge is going to sentence within guidelines anyway, regardless of what State argues.
 

         Don't plead guilty to save time or money
 

         Your general attitude should be “no guilty plea”.
 

         Make the State convince you why you should plead guilty. They can be persuasive.
 

         A PBJ in a drunk driving case, is usually a good reason to plead
 

         Discuss pleas with your client BEFORE trial day. Decide what plea you will

         or will not take.
 

         (example, in dwi case will you take plea to B, usually not on first offense)
 

          Remember, after trial in District Court, appeals are de novo
 

TRIAL
 

        If not familiar with Judge, do not have your case called first – observe Judge
 

        Before talking to State’s Attorney, ask client if witnesses he recognizes are there, including police.
 

        Check Court file, again, for last minute witness summons
 

        After you have determined status of witness, talk to Prosecutor