Criminal Defense of Immigrants

Chapter

§3.1 I. Investigating the Case
§3.2 A. In General
§3.3 B. The Timing of the Case
§3.4 C. Dealing With Bias Against Noncitizens
§3.5 II. Interviewing the Client
§3.6 A. Preparation
§3.7 1. Special Considerations
§3.8 2. Non English Speaking Clients
§3.9 3. Basic Goals
§3.10 4. Client's Culture
§3.11 B. Client Interview
§3.12 1. Basic Immigration Status Questionnaire
§3.13 2. Screening for U.S. Citizenship
§3.14 a. Born in the United States
§3.15 b. Born to U.S. Citizen Parent(s) Abroad (Acquired Citizenship)
§3.16 c. Naturalization
§3.17 d. Child of Naturalized Citizen (Derivative Citizenship)
§3.18 e. Nationals of the United States
§3.19 f. American Indians Born in Canada
§3.20 g. Denaturalization
§3.21 3. Determining Immigration Status
§3.22 4. Advice for Client
§3.23 5. Client's Equities
§3.24 6. How Important Are the Immigration Consequences to the Client?
§3.25 7. Criminal Issues
§3.26 a. The Basic Criminal Case Interview
§3.27 b. Determining Which Criminal History Reports to Order
§3.28 c. Prior Convictions and Their Validity
§3.29 8. Obtaining Information About the Client's Culture
§3.30 9. Obtaining Medical Information
§3.31 III. Obtaining Immigration Records
§3.32 A. FOIA Requests
§3.33 B. Information on Amnesty Clients
§3.34 IV. Obtaining Criminal Records
§3.35 A. Criminal History Reports
§3.36 1. FBI Criminal History Reports
§3.37 2. State Criminal History Reports
§3.38 3. Motor Vehicle Conviction History
§3.39 4. Correcting Errors in Criminal Histories
§3.40 B. Obtaining Court Files and Transcripts
§3.41 C. Record Destruction Does Not Eliminate Convictions
§3.42 V. Obtaining Assistance from Immigration Counsel
§3.43 A. Finding Immigration Counsel
§3.44 B. Initial Consultation
§3.45 C. On-Going Consultation
§3.46 D. After Final Disposition of Criminal Case
§3.47 VI. Obtaining Assistance from Former Counsel
§3.48 A. Obtaining Attorney's Case File
§3.49 1. In General
§3.50 2. Conflict of Interest
§3.51 3. Attorney-Client and Work-Product Privileges
§3.52 B. Interviewing Former Defense Counsel
§3.53 1. Duty to Cooperate With Successor Counsel
§3.54 2. Mistakes Should Not Trigger Discipline
§3.55 3. General Considerations
§3.56 4. Corroborating the Client's Assertions of Prejudice
§3.57 VII. Obtaining Information About Client's Culture
§3.58 A. Cultural Experts
§3.59 B. Cultural Defenses
§3.60 C. Cultural Mitigation Issues
§3.61 D. Persecution and Torture of Client if Deported
§3.62 VIII. Cultural Effects on Medical Investigation
§3.63 IX. Foreign Investigations

§ 3.26 a. The Basic Criminal Case Interview

For more text, click "Next Page>"

It is also necessary to obtain the client’s version of the events out of which the criminal charge arose. Because most criminal charges result in pleas of guilty, the client is often the only source of information concerning possible defenses or mitigating factors, as the police and prosecution often emphasize facts that make the client look like Attila the Hun.

It is wise to conduct a comprehensive interview with the client concerning the underlying criminal case. The standard criminal case interview will suffice for immigrant clients as well as all others.

PRACTICE AID: A comprehensive discussion of the normal interview between criminal defense counsel and the client may be found at I A. Amsterdam, Trial Manual 5 For The Defense Of Criminal CASES 105-124 (1988), and an excellent Interview Checklist at pp. 125-166. A more basic form may be found at California Continuing Education Of The Bar, California Criminal Law: Procedure And Practice § 1.8 (2006).