Vietnam Criminal Defense Manual - First meeting with client

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Jail is often the first place that an attorney will meet their client. A person held in jail has many strong emotions. It is important that an attorney, especially an attorney that is appointed, make a confident first impression. A knowledgeable attorney is a confident attorney. Before meeting your client, you must be sure to review the criminal charges, know which laws apply, make copies (if possible) of the legal documents in the case, and be prepared to address bail.

Suggestions for the First Meeting

Here are some suggestions for when you first meet your client.

  • Inform your client that you are there to protect their interests. Remind him that you will work to release him from further incarceration, to avoid a criminal conviction, to protect his or her family and property.
  • Inform your client of the criminal procedure that will affect his case. Explain whether bail is available and what is required for bail.
  • Inform your client of the criminal charges and the elements of the charges. Make sure that you know each element of the criminal charge or charges and what is necessary to prove those elements.
  • Inform your client of potential defenses. Be sure to include legal standards of obtaining evidence and the arrest itself.
  • Inform your client that there are four major legal options that must be faced in the future. These options are, 1) trial, 2) no trial by admitting guilt, 3) cooperation and/or negotiations and, 4) dismissal of the charges.
  • Inform your client of the sentencing range if they are judged "guilty." Remember to include both the maximum and minimum sentence as well as sentencing options outside of jail.
  • Inform your client of the dangers of speaking with others about their case. Remind your client that what they say to others, including the police, can be repeated against them at trial or at sentencing. Also, it is important that family members are only generally informed of the charges; discussions of specific facts of the charge may cause family members to be used as a witness against the accused.
  • Inform your client of the rights and powers that they retain even though they face criminal charges. They have the protection of the Constitution, the Criminal Code and you, their legal defender. They have the right to fight all criminal charges.

Practice Tip No 2

  • The legal requirements of arrest and conditions for release on bail are found in the CPC, Articles 79-94. See also, CPC, Articles 126-129.

After clearly outlining the above eight points (and any others that you think will be helpful), ask your client if they have any questions. This is your client's first opportunity to learn the law, criminal procedure and future legal options. Do not expect your client to understood everything that you have just said. You were able to learn in law school. Now, you are the law professor and your client is the law student. Be patient and with a warm heart answer all of your client's questions.

Once your client is fully informed of the charges, the criminal procedure that applies, the potential sentencing range and defenses to the charges, it is time to ask questions that will aid in their defense. Questions should be asked in a way that is not accusatory. Your questions should give your client the opportunity to give answers that will help their case.

Client Questions Checklist

The following are some suggested questions.

2a Background Questions:

1) When is your birth date?

2) Where were you born?

3) Where do you currently live?

4) How long have you lived there?

5) What was your previous address?

6) Are you married?

7) Who are the members of your family?

8) What is your first language?

9) What language are you most comfortable speaking?

10) Can you read and write?

11) Who are the members of your family?

12) Where do your family members live?

13) Who are your friends?

14) Where do you work?

15) How long have you worked there?

16) What is the name of your boss?

17) Who are your friends at work?

18) Who would you like to be contacted regarding your arrest?

19) Do you have a prior criminal record?

20) What finances are available for bail?

21) Are there family members or co-workers who will be available to supervise you if you are released on bail?

2b Circumstances of the Arrest:

2b(1) First Contact

1) When were you arrested?

2) Where were you arrested?

3) Who made the arrest?

4) Were you informed of the reason(s) for your arrest?

5) Did you understand the reasons for your arrest?

2b(2) Warrant or Summons

6) Were you shown an arrest warrant or a summons?

7) Were you able to read and understand the arrest warrant?

8) Were you provided a copy of the summons or warrant?

9) Were you informed of your legal rights? (Read CCP, Article 49)

2b(3) Search and Seizure

10) Were you stripped searched?

11) What was taken from your body?

12) What was taken from your clothes?

13) Were fluids or hairs taken?

14) Was the area or place that you were arrested searched?

15) Was your residence searched?

16) Was your place of work searched?

17) Did you see any evidence being taken by the police or investigators?

18) What was taken?

19) Were there any witnesses to the search?

20) What was the time of day or night when the search occurred?

2b(4) Interrogation

21) What was said to you at the time of the arrest?

22) What was said to you after your arrest?

23) Who spoke with you?

24) Who initiated the conversation?

25) What were your responses?

26) What were your emotions at the time?

27) Were your statements recorded?

28) Were your statements written down?

29) Were you allowed to review and correct your statements?

2b(5) Requests for legal help and family

30) Did you ask for a legal defender?

31) Did anyone inform you that you could have a legal defender?

32) When were you informed that you could have a legal defender?

33) Did you ask to see a family member, friend or co-worker?

34) Have you seen family, friends, or co-workers since your arrest?

2b(6) Detention

35) Describe where you were physically placed after your arrest.

36) How many government officials were present at the arrest?

37) Was there any coercion before you were interrogated?

38) Were you physically threatened at the arrest or later?

39) Were you verbally abused or threatened at the arrest or later?

40) Did you try to stop the interrogation?

41) How did you do to try to stop the interrogation?

2c The Criminal Charges:

1) Do you understand the criminal charges?

2) Do you understand the legal elements of the charges?

3) Is there anyone who would say that they were with them at the time of the crime?

4) What part of the charges do you believe are not accurate?

2d Quick Investigation

1) Who should you contact?

2) Are there witnesses you should talk with?

3) Is there evidence that must be secured?

Based on your client's answers, you can give a guarded opinion of options and defense strategies. You should stress that you are giving your opinion without the benefit of any investigation such as viewing the crime scene, speaking with witnesses, or reviewing the evidence on which the prosecutor has based the charges. It is important to stress that your client must be patient to allow you to work for their freedom and protection.

In addition, you should ask your client how they wish to proceed. Do they want a bail hearing? Do they want you to prepare a defense without exploring negotiations with the prosecutor? Are they interested in cooperating with the police? Even though your client may be looking for a quick solution to get out of jail, it is important to remind them that you have just started to work on their case. With additional time you will be able to give them more information about the strongest defense that applies to their case.

After the initial meeting with your client, you should make brief notes of what you discussed. Draft a short outline of the criminal charges, the potential defenses and areas of investigation that may affect the case. Last, write down all family contacts and who should be contacted, if necessary, to inform them of your client's situation.

III. 3 Bail

The accused has a right to be released from detention until their case is resolved. The conditions of release are dependant on the accused assuring the court that they will not flee the jurisdiction or are a danger to the community. The following are factors that can effect the court's decision to release your client on bail.

3a Bail Considerations

  • Location of residence
  • Length of time living in the community
  • Length of time family has lived in the community
  • Reputation in community
  • Prior criminal record
  • Place of employment
  • Length of employment in the community
  • Willingness of family members to supervise the accused while on release
  • Willingness of co-workers to supervise the accused while on release
  • Whether the accused requires special needs.

Practice Tip No. 3:

In most cases, the accused must be released within a few days as a matter of law unless an order is sent to the Procuracy for an extension. See, CPC, Articles 86-93, discussing length of custody and bail.

Preparation of the Defense

One of the most important and simple tasks of a defense attorney is to fully understand the laws that correspond to the elements of the crime charged. It is important to start a case by writing down each factual assertion that must be proved in order for the government to obtain a conviction. Each element or factual assertion has a defense that can be applied. It is also true that each charge has a corresponding constitutional section, Criminal Code of Vietnam (CCV) article and a Criminal Code of Procedure article that applies. It is important to know how the law effects the case so all your client's rights are protected.

Practice Tip No. 4:

The rights and duties of the legal defender include the right to read the case dossier and other papers relating to the case. See, CPC, Article 58.

Generally, in all cases there are factual assertions by the government that are both good and bad for the defense of your client. "Good facts," are those facts that support the defense of your client. Another way to view "good facts," is to decide if they attack the credibility of any part of the government's charges. On the other hand, "bad facts," are those facts that support the government charges. Since your client has been charged with a crime, and is likely incarcerated, the first impression of the case is that there are many more bad facts than good facts. Do not get discouraged. You are just beginning to formulate a defense.

Make a list of the good and bad facts that you see in the government's charges. Also, note what facts may change and what facts, if they exist, will help or hurt the defense. It is helpful to place the lists side-by-side so that you can compare the two. The list may be daunting, but that is why a legal defender's work is both difficult and rewarding.

Remember, you will be returning to meet with your client to discuss and clarify his case. Showing your client how carefully you prepare a defense will give him confidence in your legal abilities. You will be surprised at how helpful a client can be after their legal defender shows them how to prepare the defense of a criminal charge.

What If? Problems that May Occur at this Stage

1. You are denied access to your client:

See, CPC, Article 58, Rights and Duty of Defense Counsel. Defense counsel has the right to meet with their client who is in custody.

2. Your client will not talk with you:

Remember, if your client is in custody he or she will be suspicious of people who visit. Explain to your client that you have either been appointed through CPC, Article 57, or have been hired by family. Carefully explain the criminal procedure of the case and how you can protect their legal rights and assist in their defense. Avoid accusatory questions.

3. The charges are vague:

See, CPC, Article 58, granting the defense counsel the right to view the case dossier.

4. The court prevents you from representing your client:

See, Article 57, granting an accused the right to a defense counsel.

6. Your client was illegally questioned:

Petition the court with special focus on both the factual and legal violations. See, Article 6 of the Constitution prohibiting coercion and CPC, Article 58 of the Criminal Procedure Code allowing for defense counsel to be present at the time of interrogation.

Investigation

Both the prosecution and the defense rest on a detailed investigation. As mentioned above, your client is in jail based on some bad facts as reported by the Head of Investigating Body or a police officer.

Practice Tip No. 5:

How far does an investigation have to go to find evidence?  The law established specific steps that must be followed.  See, CPC, Articles 34, 35, 36, set out some of the required duties of the government investigators.  

The police investigation may be sufficient to charge someone with a crime, but it is not always as detailed as a legal defender requires. This is because crimes are sometimes charged based on appearances, rather than truth. For example, your client is charged with robbing a Pho restaurant. Your client is arrested because he looks just like the bank robber. He was arrested based on his appearance. The truth was that your client was at work a kilometer away when the bank was robbed. The truth is in the details!

Suggestions for Investigation

Here are some suggestions for investigation.

Be Quick

  • Early investigation is best.
  • Delay may cause a loss of physical evidence.
  • Witnesses remember best soon after an event has occurred.
  • Early discovery of good facts can promote resolution, dismissal of charges, and successful pretrial motions.

Easy Sources of Information

  • The charging document.
  • Law enforcement investigation.
  • Client interviews.
  • Witnesses.

The Crime Scene

  • View as soon as possible.
  • View at the same time the crime occurred.
  • Document the crime scene with sketches, diagrams, photographs, measurements.
  • Look for evidence that was not collected.
  • Identify witnesses and note where to contact them in the future.
  • Look for witnesses who where not interviewed by the police.

Witnesses

  • If possible, interview the complaining witness.
  • Interview eye witnesses.
  • Use your personality to overcome a reluctant witness.
  • Use the importance of justice to overcome reluctant witnesses.
  • Interview witnesses in a safe, comfortable environment.
  • Record witnesses background information and current employment.

Witness Statements

  • Were witness statements tape recorded?
  • Were witness statements written as notes by the police?
  • Were witness statements written by the witness themselves?
  • What was the witness's motive to give a statement?
  • Were the statements based on the observations of the witness or what the witness heard?

Physical Evidence

  • How was the evidence obtained by the police?
  • Is evidence fragile or stable?
  • What is the chain of custody?
  • Has the evidence been tested?

Hard or Soft Evidence

  • What evidence will not change?
  • What evidence can be interpreted differently?

Expert Opinion

  • What evidence did the expert review?
  • What is the area of their expertise?
  • How long has he or she worked as an expert?

The above are just some areas of investigation. More investigation techniques will be discussed in the section covering specific defenses.

Investigation of Physical Evidence

An investigator must know what to look for and how to interpret what is found. What may infer guilt to the prosecutor may also be indicative of innocence. Typically, the charging document reflects the prosecution's theory of the case. For a successful prosecution, this theory must not change. The legal defender's task is to analyze the prosecutor's theory for errors, misinterpretations and exaggerations.

"Hard evidence" is evidence that will not change. For example, a gun or stolen goods are both physical objects that may be related to a case and will not change their shape or form.

Fingerprints, photos, blood are also examples of hard evidence that will not change.

"Soft evidence" is evidence that can be interpreted and changed over time. Soft evidence usually refers to witness statements since perception and memory can change over time. Witnesses also have different motives to give a statement that reflect on the truth and reliability of the witness themselves. A skilled attorney finds weakness and misconceptions in witness statements. A skilled attorney can also change "hard evidence" to "soft evidence." Some physical objects can be changed by perception and interpretation. For example, your client was found with blood on his clothes and charged with stabbing a man with a knife. By testing the blood it was discovered that the blood was not the victim's blood, but rather from a pig that he had brushed against at the market. Here, the prosecutor's theory was that victim's blood was on your client's clothes. The first impression was that your client was involved in the stabbing because blood was on his clothes. The correct interpretation, however, was that the blood was not the victim's and your client was innocent.

Perception of physical evidence and interpretation of this evidence is based on what physical evidence is found at the crime scene. Association of an accused with a crime is commonly based on what physical evidence is found at the crime scene and what evidence was near the accused. At the same time, physical evidence can exclude individuals or objects as the above stabbing case has shown.

Sources and Examples of Physical Evidence

It is important to think about what types of physical objects lead to association or exclusion of the accused. Some common items are listed below.

Sources of Physical Evidence:

  • Clothing
  • Footwear
  • Tools
  • Weapons
  • Vehicles
  • Storage areas
  • Furniture
  • Building materials
  • Food
  • Grass
  • Carpet
  • The human body

Examples of Physical Evidence:

  • Hair
  • Clothes fibers Cosmetics
  • Paint
  • Rust and metals
  • Tape
  • Pottery
  • Buttons
  • Rope
  • Cigarettes
  • Matches
  • Burned charcoal, wood or paper
  • Soil
  • Wood splinters
  • Plant material
  • Glass
  • Gunshot residue
  • Fingernail scrapings
  • Footprints
  • Blood
  • Blood splatter or patterns
  • Wounds