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

AuthorAnthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
ProfessionUniversity 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
Pages11-52
11
CHAPTER 3
REPRESENTING CLIENTS
BEFOR E INITI AL
HEARING; STEPS TO
TAKE IF A CLIENT IS
ATTHE POLICE STATION
OR IS “WANTED” BY
THEPOLICE
PAR T A . INT RODUCT ION
§ 3.01 Stages at Which the Lawy er May Enter the C ase
A defense attorney most commonly enters a juvenile deli nquency case at the Initial
Hearing. If the client is indigent, an attorney is ordi narily appointed by the court at
the Initial Hearing. If the client’s parent can afford to retain counsel, t he 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 prepari ng for and conducting the hear ing.
Occasionally, however, an attorney enters a case prior to the Initia l Hearing. The
most common scenarios of this t ype are (i) the attorney receives a phone call from a
parent or other relative of the child, stating that the child was just ar rested and is pres-
ently on the way to the police station or al ready 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 facil ity.
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 off ices 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 a nd confessing before counsel can reach
the station and avert the confession. In these situations, as i n all stages of the case,
counsel’s preparation and research should be as thorough as pract icable. Knowledge of
the individual case and client and of the local procedures a nd 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 star ted quickly to prevent the client’s inter-
ests from being ir reparably damaged by fast-breaking events that will not wait for
counsel to make a consum mately prepared appearance.
PART B. OVERVIEW OF THE INITIAL STAGES
OF THE JUVENILE JUSTICE PROCESS
§ 3.03 Arrest
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 establish ing
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 (orcustody orders”) in juvenile cases because the vast majority of
juveniles are arrested at or near t he scene of a crime shortly after its comm ission.
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
| 13
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 usual ly 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 a lleged delinquent is generally taken immediately to the police
station (or divisional or precinct headquarters) in the precinct in which the ar rest 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 mainta ined separately from the adult log,
in order to conform to local statutor y requirements of confidentialit y for juveniles.) In
some jurisdictions t he police treat logging-in as part of the “booking” or “slating” pro-
cess described in § 3.08 infra. The juvenile log normally conta ins 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, a nd 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 wil l 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, t he police in many jurisdictions also will record the respon-
dent’s name and any personal propert y taken from the respondent in a proper ty 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 authoriz ation). 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 usual ly subject the respondent to some
interrogation subsequent to arrival at the st ation and prior to the full “booking” pro cess.

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