On Professional Responsibility

I've been at a Professional Responsibility seminar the past 2 days. Overall, I don't think the seminar was too relevant for the public defender (I mean, seriously, there's little chance of me mingling my clients' trust accounts.) But there are a few points I'd like to make.

First, they said we should call our clients back within 24 hours. I wonder if this includes clients' girlfriends, wives, and baby mommas. And, also, is that 24 business hours? Because it is very rarely necessary that I call my clients on the weekends. One of the speakers also suggested bringing your messages home and calling your clients in the evening - under the theory that they'll keep the conversations short when you're impeding on their private time (as opposed to calling them at their office?). One, I'm not taking the chance that my client has caller ID, I'm not calling any accused criminal from my home. Two, private time? My clients don't have private time. They live in the projects where the police can knock on their door and search their homes at any time. Private time? Ha.

Second, and this was the only topic where they used a criminal law example, they talked about preventing your client from perjuring themselves. The example, as always, was, "You know your client is going to make up some 'I didn't do it' story, do you let him testify?" The teaching point was that you should have discussed your clients' story with him so many times that you know what's true. First, I'm not a machine, I'll never know for sure whether a client is lying or not. I've had doubts about a client's story when it's turned out to be true, I've believed a client's story that's turned out to be crap. Further, though, I wish I had the luxury to speak to my clients at greater length before trial, but I just don't.

Then I noticed that when they teach this hypothetical, they never put it in terms of "You're a prosecutor, and you know your cop is lying..." they always ask about criminal defendants.

And, then I had big moment of revelation: That's why the D.A.s don't talk to their cops before the trial. Because they don't want to know if they're going to lie. That way they can always stay within the Rules of Professional Conduct. And that's why the prosecutor gets away with letting her cop "testi-lie," and yet it's always the criminal defendant used in the perjury hypothetical. Am I right, or am I right?

I'm sure there was more I wanted to say about this seminar. If I think of it, I'll have to add it later... I've got baseball to watch right now.


  1. My co-worker was just complaining about his clients' families and how he just doesn't have time to talk to them all the time. I sent him to your blog for inspiration and amusement. When I was a prosecutor I ususally talked to my cops. I think that prosecutor's don't talk to their cops because they are incompetent and lazy.

  2. Some ADAs (myself included) do talk to every single police officer we want to put on the stand, even if we only have a minute to do so. Sometimes that quick conversation makes me question if the cop is leaving out details or possibly supplying his own; I've withdrawn prosecution on several cases recently for precisely this reason. (For example, when a cop says "Where would you like it to be?" after you ask when and where he first saw the drugs/weapons/whatever, you know you have problems. Regardless of how guilty I may think the defendant actually is, he deserves to have the police play by the rules.)

    Yet I'm well aware that I'm in the minority here and that many prosecutors don't bother to talk to the cops. But I don't think it's because they're conscientiously "following" the Rules of Professional Conduct. It's more likely that they're simply trying to save time and effort -- after all, everyone's seen the police report, and officers generally testify in a manner consistent with their reports (especially since they have reviewed those reports days or even minutes before testifying). As such, some ADAs consider talking (and, even more importantly, listening) to the cops as an avoidable, time-eating, optional step in trial prep. They would characterize themselves as efficient; like the previous poster, I consider them lazy. Either way, it sometimes results in "testilying."

  3. I agree, mostly, with Anonymous (boy, that guy gets around). I've been a prosecutor for going on 17 years and rarely put on a witness I haven't talked to beforehand. I was trained, and experience bears out, that putting on a witness you haven't talked to, even in a misdemeanor trespass case, in the moral equivalent of asking a cross-examination question when you don't have a good idea of the answer. About the only sort of witness where I feel I can rely on the report by itself are chain of custody witnesses or authentication witnesses. To the best of my knowledge, this is still the norm in my office. It's been awhile since I've been in the trial rotation, but my conversations with, and observations of our current trial staff lead me to believe pre-trial/hearing sessions with witnesses are still the rule. For that matter, as far as I know, that is still the teaching point at prosecutor basic.