For the Defense - Volume 2, Issue 4 - 2017 - 24

Counseling Your Client on Priorities

No matter how outraged
both of you may be, your client
and you need to be clear about
priorities;
Is it more important to
lodge a complaint against
the officer?
Or is it more important to
maintain as much flexibility
as possible in negotiating
the criminal case?
Unsurprisingly, police officers
do not react well to accusations
of misconduct. If the officer, or
the prosecutor, gets the idea
that you or your client are
planning a complaint or a civil
lawsuit, it could increase their
scrutiny of your case, and it
could reduce the possibility of
negotiating a misdemeanor
deal, a probationary deal, or a
diversionary program, such as
an Accelerated Rehabilitative
Disposition ("ARD").

24

For The Defense | Vol. 2, Issue 4

No matter how outraged both of you may be,
your client and you need to be clear about priorities. Is it more important to lodge a complaint
against the officer? Or is it more important
to maintain as much flexibility as possible in
negotiating the criminal case? Unsurprisingly,
police officers do not react well to accusations of
misconduct. If the officer, or the prosecutor, gets
the idea that you or your client are planning a
complaint or a civil lawsuit, it could increase their
scrutiny of your case, and it could reduce the
possibility of negotiating a misdemeanor deal,
a probationary deal, or a diversionary program,
such as an Accelerated Rehabilitative Disposition
("ARD"). In many jurisdictions, prosecutors will
seek the input of the arresting officer before
making such offers. How important is it to your
client to have a guarantee of no jail time or no
conviction versus immediately pursuing a complaint against the officer?
On the other hand, you and your client should
be aware that any conviction or plea deal in the
criminal case could preclude certain civil claims.1
Even the acceptance and successful completion
of ARD would preclude a claim of malicious
prosecution and/or unlawful arrest.2 So, before
your client accepts or rejects an ARD offer, you
both need to be fully aware of the potential
consequences - do you risk a criminal conviction
in exchange for the possibility of winning civil
damages down the road?
While I almost always counsel clients to
prioritize a favorable resolution of a criminal case
over any potential civil rights lawsuit, the decision
obviously belongs to the client.

Common Civil Rights Claims
Involving Police Misconduct
When counseling clients regarding the potential
for any future civil rights lawsuit, a criminal
defense attorney should have a general idea of
the more common claims in police misconduct
cases. Under 42 U.S.C. § 1983, an individual can
sue for damages (and injunctive relief, but we
will stick to damages here) any person acting
under color of state or local law who deprived



Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017

Table of Contents
Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
Changes in the DUI Landscape: Acts 33 and 30
Police Misconduct Resulting in Arrest: Weighing the Options
Dying with Dignity: Compassionate Release in Pennsylvania
Amicus Matters
Attorney Discipline
Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 1
For the Defense - Volume 2, Issue 4 - 2017 - 2
For the Defense - Volume 2, Issue 4 - 2017 - Table of Contents
For the Defense - Volume 2, Issue 4 - 2017 - 4
For the Defense - Volume 2, Issue 4 - 2017 - Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
For the Defense - Volume 2, Issue 4 - 2017 - 6
For the Defense - Volume 2, Issue 4 - 2017 - 7
For the Defense - Volume 2, Issue 4 - 2017 - 8
For the Defense - Volume 2, Issue 4 - 2017 - 9
For the Defense - Volume 2, Issue 4 - 2017 - 10
For the Defense - Volume 2, Issue 4 - 2017 - United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
For the Defense - Volume 2, Issue 4 - 2017 - 12
For the Defense - Volume 2, Issue 4 - 2017 - 13
For the Defense - Volume 2, Issue 4 - 2017 - 14
For the Defense - Volume 2, Issue 4 - 2017 - 15
For the Defense - Volume 2, Issue 4 - 2017 - 16
For the Defense - Volume 2, Issue 4 - 2017 - 17
For the Defense - Volume 2, Issue 4 - 2017 - Changes in the DUI Landscape: Acts 33 and 30
For the Defense - Volume 2, Issue 4 - 2017 - 19
For the Defense - Volume 2, Issue 4 - 2017 - 20
For the Defense - Volume 2, Issue 4 - 2017 - 21
For the Defense - Volume 2, Issue 4 - 2017 - Police Misconduct Resulting in Arrest: Weighing the Options
For the Defense - Volume 2, Issue 4 - 2017 - 23
For the Defense - Volume 2, Issue 4 - 2017 - 24
For the Defense - Volume 2, Issue 4 - 2017 - 25
For the Defense - Volume 2, Issue 4 - 2017 - 26
For the Defense - Volume 2, Issue 4 - 2017 - 27
For the Defense - Volume 2, Issue 4 - 2017 - 28
For the Defense - Volume 2, Issue 4 - 2017 - Dying with Dignity: Compassionate Release in Pennsylvania
For the Defense - Volume 2, Issue 4 - 2017 - 30
For the Defense - Volume 2, Issue 4 - 2017 - 31
For the Defense - Volume 2, Issue 4 - 2017 - 32
For the Defense - Volume 2, Issue 4 - 2017 - 33
For the Defense - Volume 2, Issue 4 - 2017 - 34
For the Defense - Volume 2, Issue 4 - 2017 - Amicus Matters
For the Defense - Volume 2, Issue 4 - 2017 - 36
For the Defense - Volume 2, Issue 4 - 2017 - 37
For the Defense - Volume 2, Issue 4 - 2017 - 38
For the Defense - Volume 2, Issue 4 - 2017 - 39
For the Defense - Volume 2, Issue 4 - 2017 - Attorney Discipline
For the Defense - Volume 2, Issue 4 - 2017 - 41
For the Defense - Volume 2, Issue 4 - 2017 - 42
For the Defense - Volume 2, Issue 4 - 2017 - 43
For the Defense - Volume 2, Issue 4 - 2017 - Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 45
For the Defense - Volume 2, Issue 4 - 2017 - 46
For the Defense - Volume 2, Issue 4 - 2017 - 47
For the Defense - Volume 2, Issue 4 - 2017 - 48
For the Defense - Volume 2, Issue 4 - 2017 - 49
For the Defense - Volume 2, Issue 4 - 2017 - 50
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