NCJ Number
84760
Date Published
1981
Length
27 pages
Annotation
This discussion of defense counsel's preindictment contact with the prosecutor considers whether to appear formally for the client, posturing in the preindictment stage, defense investigation and discovery in the preindictment phase, and speedy trial considerations.
Abstract
The advantages of appearing formally for the client in the preindictment stage are that it allows the lawyer to pursue the case aggressively if desired or to assess prosecution stance and decide what defense posture is best for the client. Possible defense postures are (1) the aggressive approach, which involves trying to block the indictment, minimize the indictment, or plant the seeds for a successful defense against the indictment if it is returned; (2) the cooperative position, which involves a tentative, initial gesture toward the prosecution; (3) the submissive posture, which involves trying to dispose of the case on a negotiated plea or alternative basis early in the process; and (4) the aloof attorney, which involves no more formality than a letter to the prosecutor asking that all further contact be with counsel. A good defense investigation done early and done well may result in avoiding or minimizing an indictment, but the principal drawback to preindictment investigation is the possibility that the attorney or his/her agents may be called as witnesses by the prosecution. If used as a tactical weapon, the Speedy Trial Act can give a prosecutor a tremendous advantage in a district where the court vigorously pursues the mandate of trial within 70 days of arraignment. Eleven footnotes are provided.