Section 649-102-5 - INITIAL INTERVIEW1. Purpose The purpose of the initial interview is to acquire information from the client concerning pretrial release (if needed), to provide the client with information concerning the case and to begin to develop knowledge of the facts of the case. Defense counsel should ensure at this and all successive interviews and proceedings that barriers to communication, such as differences in language or literacy, be overcome.
2. General Duties of Defense Counsel A. Where defense counsel is unable to communicate with the client because of either language differences or mental disability, the defense counsel shall take whatever steps are necessary to insure that he/she is able to communicate with the client and that the client understands the proceedings. Such steps would include having defense counsel obtain expert assistance including an interpreter for pretrial preparation, interviews, and investigation, as well as in-court proceedings.B. To ensure the preservation, protection and promotion of the client's rights and interests, defense counsel must make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier.3. Preparation. Prior to conducting the initial interview, defense counsel should, to the extent possible: A. be familiar with the elements of the offense and the potential punishment, where the charges against the client are already known;B. obtain copies of any relevant documents which are available, including copies of any charging documents, and law enforcement reports that might be available;C. be familiar with the legal criteria for determining pretrial release and the procedures that will be followed in setting those conditions;D. be familiar with the different types of pretrial release conditions the court may set;E. be familiar with any procedures available for reviewing the trial judge's setting of bail.4. Initial Client Interview A. The purpose of the initial interview is to acquire information from the client concerning pretrial release, to provide the client with information concerning the case and to begin to develop knowledge of the facts of the case. The scope and focus of the initial interview will vary according to the circumstances under which it occurs.B. Defense counsel should conduct a client interview as soon as practicable and if the client is in custody then in no event within more than seven (7) days after receiving notice of an assignment in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings. If the client is not in custody, the interview should occur prior to the deadline for filing initial motions.C. Defense counsel should convey the following types of information to the client: (1) an explanation of the procedures that will be followed in setting the conditions of pretrial release;(2) an explanation of the type of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense;(3) an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;(4) a general procedural overview of the progression of the case, where possible;(5) an explanation that the client has the constitutional right to plead not guilty; to be tried by a judge or a jury; to the assistance of counsel; to confront and cross-examine witnesses against him/her; to testify; and to not be compelled to incriminate him/herself.(6) the nature of the allegations, what the state must prove, and the likely and maximum potential consequences;(7) how and when counsel can be reached;(8) when counsel will see the client next;(9) realistic answers, where possible, to the client's most urgent questions;(10) what arrangements will be made or attempted for the satisfaction of the client's most pressing needs, e.g., medical or mental health attention, contact with family or employers.D. Defense counsel should request the following types of information from the client: (1) the facts surrounding the allegations against or affecting the client;(2) any possible witnesses who should be located;(3) any evidence of improper conduct by police or other investigative agencies, mental health departments or the prosecution which may affect the client's rights;(4) any evidence that should be preserved;(5) evidence of the client's competence to stand trial and/or mental state at the time of the offense.(6) the client's ties to the community, including the length of time he or she has lived at the current and former addresses, family relationships, immigration status (if applicable), employment record and history;(7) the client's physical and mental health, educational and armed services records;(8) the client's immediate medical needs;(9) the client's past criminal record, if any, including arrests and convictions for adult and juvenile offenses and prior record of court appearances or failure to appear in court; defense counsel should also determine whether the client has any pending charges and also whether the client is on probation or parole and the client's past or present performance under supervision;(10) the ability of the client to meet any financial conditions of release;(11) the names of individuals or other sources that counsel can contact to verify the information provided by the client; counsel should obtain the permission of the client before contacting these individuals.5. Disposition of the Case A. Defense counsel should advise the client with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.B. Defense counsel should not intentionally understate or overstate the risks, hazards or prospects of the case to exert undue influence on the client's decision as to his/her plea(s).6. Advice and Service on Anticipated Unlawful ConductA. Defense counsel should not counsel a client in or knowingly assist a client to engage in conduct which defense counsel knows to be illegal or fraudulent, but defense counsel may discuss the legal consequences of any proposed course of conduct with a client.7. Duty to Keep Client Informed A. Defense counsel should maintain regular contact with the client and should keep the client informed of the progress of the case, including: (1) the importance of maintaining contact with defense counsel and the need to notify defense counsel of any change of address;(2) the names and contact information regarding defense counsel and staff assisting with the case;(3) any court dates and significant developments in the case.B. Defense counsel should keep the client informed of any developments in the case and the progress of the preparation of the defense, and provide sufficient information to permit intelligent participation in decision making by the client.C. Defense counsel should comply with reasonable requests for information from the client and reply to client correspondence and telephone calls.8. Preparation for Bail Hearing A. If identification may be an issue, defense counsel should be aware of, and consider preventing, any identification opportunities for prosecution witnesses that may arise at arraignment.B. If the client is detained, the focus of the initial interview and investigation will be to obtain information relevant to the determination of pretrial conditions of release. Such information should generally include: (1) client's residence and length of time at that residence;(2) family (names, addresses and phone numbers);(3) health (mental and physical) and employment background;(4) explanation of any court defaults and any other information on the record;(5) probation/parole status;(6) possible sources of bail money;(7) the general circumstances of the alleged offense and/or arrest, including, where relevant, any identification procedures that occurred. Such information should be verified whenever possible.
9. Bail or Detention Hearing A. Defense counsel has an obligation to vigorously attempt to secure the pretrial release of the client under conditions most desirable to the client. While favorable release conditions are the principal goal of the hearing, defense counsel should also be alert to all opportunities for obtaining discovery.B. Defense counsel's argument to the court should include the client's ties to the community and other factors that support a conclusion that the client, if released, will return for future court appearances. The client should not, except under the most extraordinary circumstances, speak or testify at a bail hearing. Although comments on the strength and quality of the case are appropriate and reference may be made to the general nature of the anticipated defense, the specific elements of the client's defense should not be revealed at the arraignment or bail hearing.C. Defense counsel should be prepared to address the special issues of "dangerousness" that are the focus of the hearings, and, where appropriate and possible, be ready to present "proffers" that address those issues.D. Defense counsel should consider advocating for reasonable conditions of release or recognizance pursuant to pretrial probation, such as electronic monitoring, "stay away" orders, curfews, surrender of passports or licenses (motor vehicle or firearms), etc., in addition to monetary sureties. If the client wishes for defense counsel to advocate for conditions of release that may not be reasonable then counsel must do their best to explain the risks and or benefits of doing so to the client.E. Where the client is not able to obtain release under the conditions set by the court, defense counsel should advise the client of his/her right to appeal and the advantages and disadvantages of doing so. Where appropriate, defense counsel should facilitate the bail appeal procedure, including pressing for the opportunity to be heard on the same day and be prepared to represent the client at the hearing.F. Where the client is incarcerated and unable to obtain pretrial release, defense counsel should alert the court and the sheriff to any special needs of the client, e.g., medical problems, security needs, and request the court to direct the appropriate officials to take steps to meet such special needs.G. Defense counsel should be familiar with the law governing the prosecution's power to require a defendant to provide non-testimonial evidence (such as handwriting exemplars and physical specimens), the circumstances in which a defendant may refuse to do so, the extent to which counsel may participate in the proceedings, and the record of the proceedings required to be maintained.94- 649 C.M.R. ch. 102, § 5