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Talking to Defendants about hot checks

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September 06, 2007, 15:16
Ken Sparks
Talking to Defendants about hot checks
Despite the new legislation, you can still speak to an unrepresented defendant about re-setting a case, payuments due on an unfiled case of theft by check or issuance of bad check (or any other Class C misdemeanor).
September 10, 2007, 15:04
Shannon Edmonds
Originally posted by Greg Gilleland:
OK, now I am more confused than I was before.
* * *
Shannon, can your synthesize these two seemingly opposing quotes of yours?

"If the information/indictment has not been filed, you're in a grey legal area, but ethically your office should probably refrain from communicating with that person about the disposition of their case. There's no way for a defendant to properly waive his right to counsel without doing it before a judge, and there's no way to get a person before a judge without having active charges pending, so I don't see how some pre-charge waiver of counsel for an eventual disposition of that case would stick."


"I think you're right, John. I didn't mean my post to imply that a prosecutor or his staff cannot talk to anyone who might have written a bad check, especially if the case is going to be dismissed or disposed of without court proceedings. But if you know you intend to press charges and seek a conviction, etc., I recommend steering clear of pre-waiver communications, just to be safe."

Greg, I'm sorry for the confusion -- I probably should have gone back and edited my first post, instead of changing gears.

I think a prosecutor can talk to an unrepresented suspect about a case as long as the prosecutor doesn't do anything that would prejudice that suspect if charges are later filed. For instance, talking to a suspect about waiving counsel in a yet-to-be-filed case would be a no-no. However, working out a hot check case so that it results in no formal charges ever being filed would seem OK to me.

The key is "adversarial judicial proceedings" -- once a formal charge is filed, then things change. If a suspect replies to a pre-information/indictment letter sent by the prosecutor, that should be OK; on the other hand, I don't think you can talk to an unrepresented defendant after they've been arrested on a warrant issued pursuant to an information/indictment, even if the court withdraws the warrant, etc.

Does that help?
September 10, 2007, 16:54
Originally posted by Shannon Edmonds:
...talking to a suspect about waiving counsel in a yet-to-be-filed case would be a no-no. However, working out a hot check case so that it results in no formal charges ever being filed would seem OK to me.

While I agree with you in principle, doesn't the concept of working out a hot check case before formal charges are filed raise the same sort of implications as talking about waiving counsel? After all, the implicit threat to the "suspect" is that if he does not take care of his checks, a warrant will issue. In other words, "Come pay your checks off and accept these fees we are going to assess, or else we will arrest you and formally charge you."

I suppose an exception could be argues in hot check cases, since the legislature has clearly established that DA's offices are permitted to handle theft by check cases in ways that are exclusive to those cases.

I also believe it would be extraordinarily difficult to craft a statute regarding this issue without creating some sort of bright line separating when a prosecutor can talk to a suspect and when not. I suppose this is why the leg used the legal "term of art" of an "adversary judicial proceeding." But I think they could have been more clear about it.
September 10, 2007, 16:59
What if you have someone other than a prosecutor talk to the hot-check writer? Should we now privatize hot check cases?
September 11, 2007, 09:00
Ken Sparks
I think the same rules would apply since they would be considered our agent.
September 11, 2007, 09:01
Hot check cases are already privatized, if the vendor chooses to go through a collection agency instead of the DA's office, as many do.

Besides, this hot check business will all be moot in a few years, once banks stop issuing checks and vendors stop accepting them. Soon credit and debit cards will be the only acceptable payments.
September 11, 2007, 11:47
I think that's exactly what we tell them (in fact our letters say those words almost exactly).....and very often they pay the checks!! Prosecutors' officers are collection agencies for many things....victims, DPS, fines and court costs. That's not a threat that violates a person's rights to an attorney, it's giving the person an opportunity to fix the problem without getting arrested!