Pre-trial preparation

• Author: Patrick T. Barone
• Pages: 345-426

PRE-TRIAL PREPARATION

3-1

CHAPTER 3

PRETRIAL PREPARATION

§300 INITIAL CLIENT CONTACT

§301 Obtaining the Client’s Release From Jail

§302 Interviewing the Client at the Law Off‌ice

§302.1 Chronology of the Incident

§302.2 Prior Criminal Record

§302.3 Identity of Witnesses

§302.4 Statements or Admissions

§302.5 Miranda or Implied Consent Rights

§302.6 Other Factors

§303 Sizing Up the Client

§304 Educating the Client

§304.1 Explain the Elements and the Consequences

§304.2 Dealing With the Issue of Client Perjury

§305 The Client’s Emotional State

§306 The Celebrity Client

§307 The Lawyer Client

§308 Injured Drunk Driver

§310 EVALUATING THE CASE

§311 The State’s Case

§311.1 In General

§311.2 Off‌icer’s Observations

§311.3 Field Sobriety Tests

§311.4 The State’s Chemical Evidence

§311.4.1 Considerations in Obtaining an Independent Chemical Test

§311.5 State’s Witnesses

§311.6 Client’s Prior Convictions

§312 The Defense Case

§312.1 The Constitutional Right to Present a Meaningful Defense

§312.2 Defense Witnesses

§312.3 Evidence of Habit

§312.4 Expert Witnesses

§312.5 Possible Defenses

§312.6 Reviewing the Breath Test Video

§312.7 Potential Penalties

§313 Under the Inf‌luence vs. Per Se Guilt

§313.1 In General

§313.2 “Under the Inf‌luence” Analyzed

PRE-TRIAL PREPARATION

Defending Drinking Drivers 3-2

§314 Plea and Sentence Bargaining vs. Trial

§314.1 Considering, Advising and Negotiating the Plea Bargain

§314.1.1 Consider Different Terminology: Plea and Sentence Negotiation

§314.2 Instructing Client on Potential Defenses

§314.3 Effects of Guilty Plea, Including Collateral Consequences

§314.3.1 Increased Driver’s License Sanctions for Commercial Drivers

§314.4 Advising the Guilty Plea

§314.4.1 Brady Applies to Guilty Pleas

§314.5 Improper Conditions on Guilty Plea

§314.6 Court Determines That California Statute Does Not Bar All Plea Bargains

§314.7 Barring Improper Use of Defendant’s Statements Made During Plea Negotiations

§314.7.1 Use of Statements Made During Plea Negotiation

§314.8 Plea Agreement Has Binding Effect on State Agencies

§314.9 Double Jeopardy Does Not Attach Until Plea Is Unconditionally Accepted by Court

§315 Judge vs. Jury Trial

§315.1 Voir Dire

§316 Summary

§317 Claims Against the State

§320 THE DRUNK DRIVING DEFENSE FEE

§320.1 Determining the Individually Appropriate Fee for Your Clients

§321 Different Fee Structures Available

§322 Retainer Agreements

§323 The Reasonableness of the Fee

§323.1 The Fordham Facts

§323.2 The Hearing Committee Findings

§323.3 Court Proceedings

§323.4 Factors Considered

§323.5 The Expert Testimony

§330 USE OF INVESTIGATORS

§331 In General

§332 Interviewing Witnesses

§333 Visiting the Scene

§340 EXPERT WITNESSES

§341 In General

§342 Selection

§342.1 A Constitutional Right to Forensic Experts

§342.2 Expert Assistance for the Indigent Client

§342.3 U.S. Supreme Court Finds Defense Counsel Ineffective for Not Hiring Competent Expert

§342.4 Finding an Appropriate Expert Witness

§343 Preparation

§343.1 Expert Witnesses Are Immune from Sequestration Orders

§344 Strategy

§344.1 Use of Demonstrative Evidence and Demonstrative Aids

§344.2 Hypothetical Questions

§345 Preparing Your Cross-Examination of the State’s Experts

§345.1 The Machine Operator

§345.1.1 Making Fundamental Objections

§345.2 The Administrative Off‌icer

§345.3 The Forensic Expert

§345.3.1 Impeaching the State’s Expert

§345.3.2 Obtaining Information to Impeach the State’s Expert

§345.3.3 Questioning the Conduct of Expert Witnesses

PRE-TRIAL PREPARATION

3-3 Pre-Trial Preparation

§345.4 The Defense Expert

§345.5 Court-Appointed Experts

§345.6 State’s Cross-Examination and Impeachment of Defense Expert Deemed Proper

§345.7 Court Erred in Precluding Defendant From Cross-Examining Off‌icer About NHTSA Training

§345.8 Attacking the Expert’s Qualif‌ications

§346 Expert Witness Directory

§350 THE PROSECUTOR

§350.1 General Points

§350.2 Prosecutors and Judges Shouldn’t Be Facebook Friends

§360 AVOIDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL

§360.1 General Points

§360.2 Maintaining Proper Communication With Your Clients

§360.3 Padilla Advisory May Be Required on DUI Cases

§360.4 Managing Your Client’s Expectations

§360.5 Identifying and Managing Diff‌icult Clients

§370 SPECIAL CONSIDERATIONS IN PREPARING DUI CASES INVOLVING SERIOUS INJURY OR DEATH

§370.1 The Importance of Communications With Victim’s Family

§370.2 Considering the Prosecutor’s Role as Advocate for Victim

§370.3 Evaluating the Accident Reconstruction Report

§370.4 Evaluating Evidence of Impairment Collected After the Accident

§380 RESOURCE MATERIAL

SEE DIGITAL ACCESS FOR RELATED FORMS

Form 3-1 DWI Client Interview Form

Form 3-2 DWI Lay Witness Questionnaire

Form 3-3 Retainer and Fee Agreement #1

Form 3-4 Retainer and Fee Agreement #2

Form 3-5 “What to Expect” Client Letter

Form 3-6 General Authorization to Release Information

Form 3-7 Authorization to Obtain Driving Record

Form 3-8 Authorization to Obtain Criminal/Arrest Records

Form 3-9 Authorization to Obtain Counseling Records

Form 3-10 Authorization to Obtain Probation Records

Form 3-11 Authorization to Obtain Mental Health Records/Alcohol Counseling Records

Form 3-12 Authorization to Obtain Insurance Records

Form 3-13 Authorization to Obtain Military Records

Form 3-14 Authorization to Obtain Educational Records

Form 3-15 Instructions to Defense Witnesses

Form 3-16 Authorization for Release of Medical Records (HIPAA)

Form 3-17 First Letter to Client

Form 3-18 Exper t Witness Interview Form

Form 3-19 Motion for Appointment of Chemical Expert

Form 3-20 Motion for Appointment of Forensic Expert

Form 3-21 Motion to Withdraw a Guilty Plea

Form 3-22 Brief in Support of Defendant’s Motion to Admit Demonstrative Evidence