Representing Clients Before Initial Hearing; Steps To Take if a Client Is at the Police Station or Is 'Wanted' by the Police

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 11-52

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CHAPTER 3

REPRESENTING CLIENTS

BEFORE INITIAL

HEARING; STEPS TO

TAKE IF A CLIENT IS

ATTHE POLICE STATION

OR IS “WANTED” BY

THEPOLICE

PART A. INTRODUCTION

§ 3.01 Stages at Which the Lawyer May Enter the Case

A defense attorney most commonly enters a juvenile delinquency case at the Initial

Hearing. If the client is indigent, an attorney is ordinarily appointed by the court at

the Initial Hearing. If the client’s parent can afford to retain counsel, the parent and

client most often retain the attorney immediately prior to the Initial Hearing, and the

lawyer then enters his or her appearance at the hearing. The role of an attorney at the

Initial Hearing and the client’s right to counsel at that hearing are discussed in Chapter

4, along with a description of the strategic considerations that should inform counsel’s

actions in preparing for and conducting the hearing.

Occasionally, however, an attorney enters a case prior to the Initial Hearing. The

most common scenarios of this type are (i) the attorney receives a phone call from a

parent or other relative of the child, stating that the child was just arrested and is pres-

ently on the way to the police station or already at the stationhouse; (ii) the attorney is

contacted by the child or parent or other relative after arrest, but prior to the probation

intake process, and represents the child in the Probation Department’s intake process;

and (iii) the attorney receives a phone cal l from a client who is “wanted” by the police for

12 | Tria l Manual for Defense Attorn eys in Juvenile Delinquency C ases

a crime for which s/he ha s not yet been arrested, for fail ing to appear for a court hearing,

or for escaping from a juvenile detention facility.

This chapter takes up each of these scenar ios in turn, describing the steps t hat coun-

sel must take in each situation to protect his or her client’s rights. As a predicate for that

discussion, Part B of this chapter presents an overview of the procedures that police

departments and probation offices generally follow from the time of arrest until the

Initial Hearing.

§ 3.02 General Approach in Entering a Case:

The Need to Move Quickly

In each of the scenarios examined in this chapter, counsel will need to move quickly.

For example, if the client is at the police station, a delay on counsel’s part may result

in the client’s succumbing to police pressure and confessing before counsel can reach

the station and avert the confession. In these situations, as in all stages of the case,

counsel’s preparation and research should be as thorough as practicable. Knowledge of

the individual case and client and of the local procedures and functionaries can spell

the difference between wise choices of action and foolish ones. But at the outset of a

juvenile case part icularly, a trade-off does exist between the v irtues of time-consu ming

preparation and the importance of getting started quickly to prevent the client’s inter-

ests from being irreparably damaged by fast-breaking events that will not wait for

counsel to make a consummately prepared appearance.

PART B. OVERVIEW OF THE INITIAL STAGES

OF THE JUVENILE JUSTICE PROCESS

§ 3.03Arrest

The statutory standards for arresting a child (often termed “taking the child into cus-

tody”) for a delinquency offen se usually parallel the standards for a rresting adult crimina l

defendants. The arrest can be either: (a) pursuant to an arrest warrant (usually called a

“custody order”) issued by a judge or magistrate on the basis of an affidavit establishing

probable cause (often called “reasonable cause” in juvenile statutes) to believe that the child

committed a delinquent offense; or ( b) without a warrant, on the off icer’s own determina-

tion that s/he posse sses facts making out probable cause (or “reasonable cause”) to believe

that an offense was com mitted and that this part icular juvenile is the perpetrator (or aider

and abettor in the perp etration) of the offense. As a practical m atter, the courts rarely deal

with arrest warrants (or “custody orders”) in juvenile cases because the vast majority of

juveniles are arrested at or near the scene of a crime shortly after its commission.

The arrest invariably is followed by a “search incident to arrest.” See§ 23.08 infra.

Frequently, the police also will conduct an on-the-s cene identification procedu re, known

Representin g Clients Before Initial Hea ring

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as a “show-up,” in which the respondent is shown to the complaina nt and any other eye-

witnesses for identification. See § 25.03(a) infra. Thereafter, the police usually take the

alleged delinquent to the police station for “booking,” interrogation, and possibly addi-

tional identification procedures. See§§ 3.04, 3.05, 3.08, 3.09 infra.

§ 3.04 Police Practices Following Arrest—Logging-In

Following an arrest, an alleged delinquent is generally taken immediately to the police

station (or divisional or precinct headquarters) in the precinct in which the arrest took

place. The respondent’s arrival at the station is ordinarily, but not invariably, noted in a

police log for juvenile cases. (This is usually maintained separately from the adult log,

in order to conform to local statutory requirements of confidentiality for juveniles.) In

some jurisdictions the police treat logging-in as part of the “booking” or “slating” pro-

cess described in § 3.08 infra. The juvenile log normally contains a dozen or so respon-

dents to the page, and it records not merely the name and the time of logging but also

the time and t he place of arrest, some identify ing characteristics of the respondent (such

as sex, race, date of birth, and parent’s name), and the charge. Some police departments

conceive logging-in as a recording routine unrelated to “booking” and maintain two

books—the log and t he blotter. Under this latter practice all juven iles brought to the sta-

tion may be logged in on arrival, and those against whom it is decided to lodge charges

may later be noted in the arrest book or “blotter.” Or children against whom it is clear

that charges will be lodged may be noted immediately on the blotter, whereas children

brought in “for investigation” or “on suspicion” may be noted in the log (sometimes

called the “small book”).

In a ny event, po lice genera lly feel no obligatio n to make a n immedia te log or blot ter

entry when there are invest igative reasons for not doing so. For example, the police may

refrain from recording the respondent’s name in the log in very serious cases in which

the police wish to interrogate the respondent for a lengthy time, free of any interference

from parents or lawyers.

In addition to recording the respondent’s name in a logbook showing either arrivals

at the station or arrests, the police in many jurisdictions also will record the respon-

dent’s name and any personal property taken from the respondent in a property log.

Unlike property seized as proceeds or evidence of the crime (and held by the police or

the prosecution until trial), this personal property can be retrieved at any time by the

respondent, his or her parent, or the attorney (with proper authorization). Frequently,

this personal proper ty will include a jacket, bag, or other items that counsel will want to

retrieve in order to substantiate a defense of misidentif ication.

§ 3.05 Interrogation and Other

Investigative Procedures

Whatever the logging-in practice, the police usually subject the respondent to some

interrogation subsequent to arrival at the st ation and prior to the full “booking” pro cess.