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During investigation and trial preparation, counsel should develop and continually reassess a theory of the case and develop strategies for advancing appropriate defenses and mitigating factors, including those related to mental health, on behalf of the client.

Counsel should preserve the client's rights at arraignment by:

  • A.

    Entering a plea of not guilty in all but the most extraordinary circumstances when a sound tactical reason exists for not doing so; and

  • B.

    Requesting a trial by jury, if failure to do so may result in the client being precluded from later obtaining a trial by jury.

  • A.

    Counsel should consider filing an appropriate pretrial motion whenever a good-faith reason exists to believe that the client is entitled to relief that the court has discretion to grant.

  • B.

    The decision to file pretrial motions should be made after thorough investigation, and after considering the applicable law in light of the circumstances of each case. Among the issues that counsel should consider addressing in a pretrial motion are:

1. The pretrial custody of the client and the filing of a motion to review conditions of release;

  • 2.

    The competency of the client;

  • 3.

    The constitutionality of the relevant statute or statutes;

  • 4.

    Potential defects in the charging process;

  • 5.

    The sufficiency of the charging document;

  • 6.

    Severance of charges or defendants;

  • 7.

    The discovery obligations of the prosecution;

  • 8.

    The suppression of evidence gathered as the result of violations of the Fourth, Fifth,

Sixth, or Fourteenth Amendments to the United States Constitution, or corresponding or additional state constitutional provisions and statutes, including;

  • a.

    The fruits of illegal searches or seizures;

  • b.

    Involuntary statements or confessions;


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