NCJ Number
51096
Journal
Criminal Law Bulletin Volume: 14 Issue: 5 Dated: (SEPTEMBER/OCTOBER 1978) Pages: 433-436
Date Published
1978
Length
4 pages
Annotation
VARIOUS METHODS FOR DEFENSE COUNSEL TO MINIMIZE SENTENCING ARE DISCUSSED.
Abstract
THE ATTORNEY OF A CLIENT CHARGED WITH A SERIOUS CRIME, SHOULD INITIALLY ALERT THE ACCUSED THAT EFFORTS FOR DISMISSAL OR ACQUITTAL ARE LIKELY TO BE UNSUCCESSFUL. THE DEFENSE COUNSEL'S ROLE MAY MINIMIZE THE SENTENCE THAT THE COURT IMPOSES. COOPERATION AGAINST CO-DEFENDANTS OR ASSISTING THE PROSECUTOR TO GATHER EVIDENCE CONCERNING COGNATE MATTERS CAN ALSO SERVE TO MINIMIZE OR AVOID JAIL SENTENCE. PREPLEADING INVESTIGATIONS MAY HELP TO DETERMINE WHAT THE PLEA AND SENTENCE WILL BE. THE TRAINED SOCIAL WORKER, ENTICED WITH APPROPRIATE FACTS FROM THE DEFENSE COUNSELOR MAY PREPARE A DOCUMENT THAT JUSTIFIES DISMISSAL OF THE CHARGES OR ACCEPTANCE OF A MUCH LESSER PLEA THAN CONTEMPLATED. BY CONSTITUTIONAL RIGHT, COUNSEL MUST ARRANGE TO BE PRESENT WITH THE CLIENT AT THE TIME OF THE PRESENTENCE OR PREPLEADING INVESTIGATION INTERVIEW. THE ROLE OF COUNSEL AT THIS TIME CAN BE CRITICAL FOR THE FOLLOWING REASONS: (1) THE CLIENT CAN BE SHOWN IN HIS OR HER BEST LIGHT BY COUNSEL'S DISCRETE ASSISTANCE, (2) EXTENUATING CIRCUMSTANCES CAN BE NOTED BY COUNSEL, (3) RECOMMENDATIONS THAT OTHERS BE INTERVIEWED CAN BE MADE AT THIS TIME, (4) SYMPATHETIC RAPPORT BETWEEN THE CLIENT AND THE INVESTIGATOR CAN BE DEVELOPED BY COUNSEL; AND (5) COUNSEL CAN SUPPLY DATA AND CHARACTER REFERENCES. UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE IT IS REQUIRED THAT PRESENTENCE REPORTS BE EXAMINED BY COUNSEL TO DETECT ERRORS AND TO OBTAIN CONSTRUCTIVE INFORMATION. IT IS SUGGESTED THAT PRESENTENCE MEMORANDA INDICATE ALTERNATE CONSTRUCTIVE PROGRAMS, AND PROVIDE ESSENTIALS WHICH MAY HAVE A SOFTENING IMPACT. COUNSEL'S ORAL STATEMENT SHOULD HIGHLIGHT THE MOST SALIENT FACTORS WHICH SUPPORT EFFORTS FOR A MINIMUM SENTENCE AND AFFIRMATIVE PROGRAMS. FOOTNOTES ARE PROVIDED. (JCP)