Freshly out of law school, I have a first client meeting with a man who has legal troubles. He was recently arrested for driving under the influence and assault. He’s the one in trouble, but I am pretty nervous too. After all this is my first case. Fortunately, I remember a reference book from law school, which might prove helpful . . .
Published by Lexis Nexis, the Criminal Law Deskbook (“Deskbook”) is conveniently available at your local law library, in loose-leaf format, or online at Lexis Advance. I choose to access it online because, being at everyone’s fingertips, it seems most practical. The Deskbook was written with the criminal lawyer in mind but that said, the Deskbook offers a road map to guide any attorney through every stage of the criminal justice process. It covers all aspects of the criminal justice system from arrest through disposition of the case, explaining every procedure, the related aims, and how to achieve them. In fact, despite being only two volumes, the Deskbook is so comprehensive that aspiring prosecutors and defense attorneys may wonder why they even went to law school with this resource at their fingertips.
Accessing the Deskbook on Lexis Advance is simple. Slowly type “Criminal Law Deskbook” into the red search box and wait for the auto-populate feature to bring up the Deskbook. Click on “View Table of Contents,” not on the title, to retrieve an expandable list of chapters (see image below).
If you want to search the Deskbook, click on the title instead and enter your search terms in the red box. For my research, however, I use the expandable table of contents because it lays out all the chapters so I can easily view what information is available (see image below).
The first chapter (The Adversary System and the Criminal Justice Process) discusses the theory behind the adversarial system and the functions of each side, prosecution and defense, in the criminal justice system. It explains the difference between legal and factual guilt, discusses the burden of proof, then goes on to explore the professional responsibilities of defense attorneys, prosecutors, and judges. Chapter 1 also covers limitations on advocacy, such as the prohibition against making a false statement of law or fact and jurisdictional rules.
After reviewing the initial materials, I feel ready to jump into the meat of the Deskbook and take on my first case. Remember, because the Deskbook examines each step of the criminal process it isn’t necessary to utilize every section in the guide. I simply look up, in the interactive table of contents, the step I need to take in the process and go forward from there. For example, chapter 3A, which relates to terrorism prosecution, will be unnecessary to defend my client.
The table of contents is in the same chronological order as the proceedings themselves and I can easily expand each chapter topic by clicking on the arrows (see image below).
For my client’s case, in preparation for the arraignment and bail hearing, I first review chapter 2 (Arraignment and Bail Hearings). Besides providing the background and purpose of an arraignment, chapter 2 details some of the steps that I, as defense counsel, should consider prior to arraignment, including:
- interviewing the defendant;
- interviewing witnesses;
- securing the attendance of family members;
- assisting the defendant to secure bail;
- examining the accusatory instrument; and
- planning the future trial strategy
Of course, all of these steps may not be complete before the arraignment and bail hearing, but they give me a sensible place to start advocating for my client.
Also before meeting with my client I look up his particular crimes in chapter 3 (Substantive Crimes and Their Elements). I expand chapter 3 and select “Offenses against Public Order.” Next I open “Driving under the Influence,” which provides the definition (or elements) of my client’s charge. Additionally, I learn how the crime may be proven and some information as to the penalty (e.g. that multiple offenses may constitute a felony). For my client’s second charge, I return to chapter 3, but this time I examine “Offenses against the Person,” which leads me to “Assault” (see image below). Here I find the elements of this offense, learn when an assault is a felony, and encounter a brief discussion of “gang assault,” a charge available to combat gang violence in some jurisdictions and fortunately not applicable in my client’s case.
Next, I turn to chapter 4 because it deals with the preliminary examination. I’d like to learn more about the process that determines whether there was a probable cause to believe that a crime was committed and that the defendant committed it. In addition, the chapter covers the timing of the preliminary examination noting, for instance, that such a hearing can be waived. In some cases a defendant may be charged by information without necessitating a preliminary examination because the information addresses the issue of probable cause.
In chapter 5, I return to a task central to my duties as defense counsel: discovery. Besides learning the purpose of discovery, I find a discussion of what the prosecutor is required to divulge and what she is not, under the Federal Rules of Criminal Procedure. Further, I discover that as defense attorney, I must make reciprocal discovery when requested. In addition, I learn there is a requirement to inform the prosecution of certain defenses — alibis and insanity defenses, primarily. Particularly helpful, since this is my first case, is the sample request for discovery form located at the end of the chapter (see image below). This model form contains questions of about every type, which is especially useful because I want my discovery request to be complete and exhaustive.
After reviewing the discovery response I may be ready to file a motion to suppress evidence, a pretrial motion. However, I find no grounds yet to file any pretrial motion and thus move on to chapter 7 (Search and Seizure). Unfortunately for my client, there do not appear to be any 4th Amendment issues I can raise. The dashboard camera from the police cruiser clearly shows my client driving erratically, then assaulting his passenger after being pulled over. This does not seem like the ideal case to take to trial as the prosecution appears to have a solid case in hand. Thus, I skip the next few chapters dealing with “Suppression of Statements,” “Suppression of Identification Evidence,” and “Motions Limiting Cross-Examination.”
My client is not innocent, but he has no prior criminal record and the assault was minimal. This is important because, as I learned earlier, prior offenses for DUI may result in a stiffer sentence or a felony. Similarly, had there been bodily harm or had a weapon been used in the assault, the law allows for a felony conviction and more jail time. Because, in my estimation, my client is a good candidate for outpatient treatment and probation, but not for trial or prison, I turn to chapter 11 (Plea Bargaining and the Guilty Plea).
Like the others, chapter 11 begins with a bit of background. After a brief synopsis, the chapter delves into everything I need to know about plea bargaining so I can advocate for my client. I review the types of plea agreements, the factors the prosecution and defense should weigh when deciding whether to enter into a plea agreement, the lawyer’s role in advising the defendant, and preparation for plea bargaining. There are two particularly helpful sections in this chapter: “Negotiating Techniques and Tactics” and “Defense Arguments in Plea Bargaining.” Besides the reminder that the defendant is ultimately responsible for the decision to plead guilty or not, there are suggestions about what to use to gain bargaining leverage, the important things I should stress when talking to the prosecutor about my client, types of pleas (Alford, for example), and the plea taking process. There is even an example of a plea taking process so I feel comfortable in this negotiation, even though it’s my first one (see image below).
Luckily for my client, and thanks to the Deskbook I have confidence that the plea bargain will go well, and I don’t anticipate that he will serve any jail time if he behaves for the next 3 years. Equally fortunate for him is the fact that he probably won’t have to go to trial, where I feel a jury would like convict. But should such a possibility occur, my job will be made immeasurably easier by the Deskbook. I will simply move on to chapter 12 — “Preparation for Trial.” That along with the remaining chapters will guide me how to proceed through trial, right to sentencing.
Authored by Jeremie Marrow, 3L, University of Montana School of Law