1. Is there a co-defendant? Does the defendant have a codefendant (someone also charged with committing the same crime as the defendant)? If so:
- Get as much information as you can about the codefendant and any statements he or she may have made;
- Consider making a severance motion;
- Consider whether it would be favorable to the defendant to testify against the codefendant and be aware that the codefendant may testify against the defendant.
2. Do you have all the details? Know about the date the crime occurred, the date of arrest, when the complaint or indictment was issued, and where the defendant was during that time period.
3. Did the defendant make a statement to the police? Get a copy of any statement, whether oral, written, or recorded. Consider moving to exclude the statement.
4. Was a search involved? If so, was a warrant served? Was anything seized? Who conducted the search? Consider arguing that the search was unreasonable.
5. Did the police take any bodily fluids from the defendant? Did the police take defendant’s blood, breath, urine, or semen? If so, obtain a copy of the report. Consider having a sample of the fluids retested and/or moving to suppress the test results.
6. Was an informant involved? If so, request discovery of the informant’s identity. Move to dismiss if the prosecution did not take reasonable steps to keep in touch with a material informant and the defense is now unable to find the informant.
7. Did the police do anything that the defendant thinks was wrong? Consider a motion to dismiss if there was discriminatory enforcement of the law, e.g., retaliatory prosecution, entrapment, or racial bias.
8. What is the defense? Get names, addresses, and phone numbers of witnesses or of people who will be able to help you find them. If the defendant claims that a third person committed the crime, find out as many details as possible and have an investigator begin verifying the defendant’s claims right away.
9. Does the defendant need any examinations? Arrange for the defendant any necessary mental or physical examinations and/or tests.
10. Where did the crime occur? Is the case in the proper jurisdiction and proper venue?
11. Is the defendant on probation or parole? Did the defendant violate parole? Consider the ramifications of the pending criminal case on any probation or parole conditions.
12. Does the defendant have any prior convictions? Priors can add a great deal of time to a defendant’s sentence. Send for copies of the priors immediately. Consider challenging a prior.
13. Does the defendant have any pending cases? If the defendant has pending criminal cases, is he or she represented on them? If so, contact that attorney and work with him or her so that everyone is kept informed about all cases.
14. Is the defendant already represented by another lawyer on this case? If the defendant wants to continue to be represented by another lawyer, stop the interview. Otherwise, have the defendant sign a substitution of attorney form and, after the interview, ask the other lawyer for the client’s file.
15. Was a lineup held? Find out all details about the lineup, such as when and where it was held, whether a lawyer counseled the defendant at the lineup, and how the lineup was conducted. Consider challenging the lineup. Consider holding your own lineup.
16. Is the defendant in custody? Find out if the defendant will be able to make bail.
17. Does the defendant have a professional license? Find out the defendant’s profession and, if he or she has a professional license, determine what effect the criminal case may have on that license.
18. Is the defendant a U.S. citizen? If the defendant is not a U.S. citizen, the criminal case may have immigration consequences.
Each of these questions is explained in detail with practical tips in the “crim law bible,” CEB’s California Criminal Law Procedure and Practice. New to criminal law practice? CEB includes an excellent overview of basic criminal practice in California Basic Practice Handbook, chap 6.
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