10/14/2015Gulf Region Advocacy Center Protocols for Memorializing Your Investigation Kirsty Davis The Gulf Region Advocacy Center April 2011

10/14/2015Gulf Region Advocacy Center OVERVIEW I. Protocols That Must Be Established II. Considerations in Establishing Protocols III. Universal Protocols IV. Suggested Protocols, depending upon Jurisdiction

10/14/2015Gulf Region Advocacy Center I. Protocols Must Cover Taking notes (use of other media) Disclosures to lay witnesses Taking Written Statements Memorializing information –Format –Distribution –Work product Sharing Information with Experts

10/14/2015Gulf Region Advocacy Center I. Protocols Must Cover, cont’d. Unsolicited admissions from client Undocumented prior acts of violence Uncharged criminal conduct Client’s access to discovery

10/14/2015Gulf Region Advocacy Center II. Considerations in Developing Protocols – The Law Reciprocal Discovery at Trial Disclosure of Statements of Testifying Lay Witnesses Disclosure of Information RELIED UPON by Testifying Experts Disclosure in Post-Conviction

10/14/2015Gulf Region Advocacy Center II. Considerations in Developing Protocols – Case Development Impact on Witness & Client Relationships Stages of the Investigation –Preparation, withholding judgment, avoiding paralysis Organizing, Digesting, Processing Information Sandbagging Your Own Defense

Discovery Issues In Arizona A.R.S., Rules of Criminal Procedure, Rule Disclosure by defendant: c. Disclosure by Defendant; Scope. Simultaneously with the notice of defenses submitted under Rule 15.2(b), the defendant shall make available to the prosecutor for examination and reproduction the following material and information known to the defendant to be in the possession or control of the defendant: (1) The names and addresses of all persons, other than that of the defendant, whom the defendant intends to call as witnesses at trial, together with their relevant written or recorded statements; 10/14/2015Gulf Region Advocacy Center

Rule 15.2(e): Rule 15.2(e), provides for additional disclosure made upon request and specification; subsection (2) provides for “Any completed written reports, statements and examination notes made by experts listed in Rule 15.2(c) (1) and (2) of this rule in connection with the particular case.” 10/14/2015Gulf Region Advocacy Center

Rule 15.4: Rule 15.4 provides general disclosure rules. Subsection (b)(1) exempts work product from the parties’ disclosure obligations: “Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecutor, members of the prosecutor’s legal or investigative staff or law enforcement officers, or of defense counsel or defense counsel’s legal or investigative staff.” 10/14/2015Gulf Region Advocacy Center

Rule 15.4 Caselaw: Rule 15.4, Hickman v. Taylor, 329 U.S. 425 (1947)(recognizing work-product as protected from discovery). State ex rel. Corbin v. Ybarra, 777 P.2d 686 (1989)(retained experts are part of counsel’s “staff” for purposes of Rule 15.4(b)(1)). 10/14/2015Gulf Region Advocacy Center

Only Trial Cases: Rule 15 only applies to trial cases, not postconviction cases. Canion v. Cole, 210 Ariz. 598, 115 P.3d 1261 (2005). 10/14/2015Gulf Region Advocacy Center

10/14/2015Gulf Region Advocacy Center III. Universal Protocols – Statements Do not routinely take statements Team discussion about specific witnesses and issues Don’t put everything in statements Early statements minimal, limited to what is necessary and verifiable If must take statement on uncertain info, separate from other information

10/14/2015Gulf Region Advocacy Center III. Universal Protocols -- Memos Labeling and handling of memos as confidential client communication and work product 48 hour rule: This is not aspirational--this is a maximum time. The longer you wait the more you forget. Also, it is critical that everyone on the team know what is being done on the case.

10/14/2015Gulf Region Advocacy Center III. Universal Protocols -- Memos Memos should include: –The witness’s relevance –Witness background (address, physical description, directions to the witness’s home) –Circumstances of the interview –Direct quotes where possible –Assessments and conclusions depends upon discovery rules and decisions regarding team communication; often a separate memo.

10/14/2015Gulf Region Advocacy Center IV. Suggested Protocols Put impressions or observations (drunk, disheveled, shifty, angry, hostile, unclean, biased) – in a memo to counsel titled “strategic considerations.” Recite your identifications and disclosures in memos No written reports