57 RI Bar J., No. 3, Pg. 5. Attorney Practice Guide: Criminal Defense Representation - Part I: Pretrial Phase.

• Author: George M. Muksian, Esq.

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 3, Pg. 5.

Attorney Practice Guide: Criminal Defense Representation - Part I: Pretrial Phase

Rhode Island Bar Journal57 RI Bar J., No. 3, Pg. 5 November/December 2008 Attorney Practice Guide: Criminal Defense Representation - Part I: Pretrial PhaseGeorge M. Muksian, Esq.Co-Chair of Rhode Island Bar Association Criminal Law Bench Bar Committee

1. Role of Defense Counsel: The key obligation of defense counsel is to render zealous and quality representation at each stage of the criminal process. Underlying such performance is the requirement that counsel exercise professional judgment in accordance with ethical standards and in adherence to the rules of court.

2. Education, Training and Experience of Defense Counsel: To offer quality representation, counsel must be knowledgeable of the substantive and procedural criminal law governing the jurisdiction of the case. Moreover, counsel has an ongoing duty to know the changes and developments in the law determined by statutory or appellate decisions. Counsel should be adequately trained and experienced in relation to the seriousness and complexity of the criminal matter before the court.

3. General Duties of Defense Counsel: a) Before being engaged or accepting appointment to represent a criminal defendant, counsel must be reasonably satisfied that there is adequate time, resources, knowledge, and experience for purposes of representing the client. If circumstances change such that counsel is unable to provide quality representation based on the amount of time, resources, knowledge, and experience demanded by the particular case, then counsel is obligated to seek withdrawal from the case; b) Counsel must be scrupulous in determining whether any potential or actual conflicts of interest exist that would depreciate or impair their ability to represent a client; c) Counsel has an obligation to keep the client adequately informed of the status and progress of the case.

4. Pretrial Release: Counsel's first duty on behalf of a criminal defendant is to make a complete effort to secure the pretrial release under optimally favorable conditions to the client.

   4.1 Preparation: In preparing to represent the client relative to securing pretrial release, counsel should conduct the initial interview under the following guidelines: a) know the elements of the alleged offense and the potential sentence; b) obtain copies of all relevant documents at the earliest time when available, including the charging documents and supporting statements, affidavits and reports; c) know the legal criteria and bail guidelines on the issue of pretrial release, as well as the procedure and practice in setting bail conditions; d) know the variations of pretrial release conditions and the public or private agencies involved in the possible supervision of pretrial release; e) know the procedures for reviewing the court's setting of bail and the attendant conditions.

   4.2 The Initial Interview: The purpose of the initial interview is to exchange information with the client. a) Client information needed to secure the client's pretrial release includes: (i) the client's ties to the community, including the period of time residing at current and prior addresses, real estate interests, significant family relationships, and employment history; (ii) health status and medical issues, including immediate medical needs; (iii) educational and military history; (iv) prior criminal history including: record of court appearances/failures to appear; pending criminal charges; probationary or parole status; and compliance with conditions of supervised probation or parole; and (v) the client's abilities to meet financial conditions of release; b) Counsel information provided the client includes: (i) the procedures related to the determination of the conditions of pretrial release; (ii) the process related to the client's potential referral to a pretrial release supervising agency, and advisement that the client is not discuss or make any statements with respect to the pending criminal matter; (iii) the attorney-client privilege and advisement that the client is not to discuss or make a statement with respect to the pending criminal matter if requested by anyone, including law enforcement officials; (iv) the charges, including statutory definition, elements of proof, and standard defenses; and (v) potential sentence upon a plea or finding of guilt based on the sentencing benchmarks and the sentencing practice of the court in comparable cases; c) Supplemental information may include the facts of the case as...