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19 Things Your Criminal Defense Lawyer Wishes You Knew
There are many myths and misconceptions about the criminal justice system. The more you know about how the system works, the better you will be able to assert your rights and protect your interests. This list contains information and advice which, we hope, you can use to your advantage to help you avoid the common pitfalls and unpleasant surprises that can plague an individual both before and after an arrest.
- You do not have to consent to a police request.
2. But you should always comply with police commands.
3. “Consent” is often a police officer’s only lawful option to support a search.
4. There is no value in arguing your case with the arresting officer.
5. Police investigations are designed to get convictions, not find the truth.
6. The police do not have to advise you of your rights when arresting you.
7. You must speak up to assert your right to remain silent.
8. If you know a warrant has been issued for your arrest, the best thing to do is to turn yourself in.
9. You have no constitutional right to make a phone call from jail.
10. If you are allowed to make a call, keep it short and stick to the immediate facts.
11. Once you are arrested, there (still) is no value in arguing your case to the police.
12. The more you talk about your case, the more you put the outcome at risk.
13. The State decides whether to prosecute a case, not the alleged victim.
14. Ignorance of the law is not a defense.
15. Innocence is not a basis to for a motion to dismiss.
16. Your good character is almost always irrelevant to your defense at trial.
17. You are not allowed to speak to the judge about the facts of your case.
18. A plea agreement is not a “get out of jail free” card.
19. A criminal trial is not a quest for the truth.
I. BEFORE AN ARREST
ENCOUNTERS WITH THE POLICE
- You do not have to consent to a police request.
In any police encounter, it is important to respect the authority of law enforcement, but it is equally important to protect your constitutional rights. If a law enforcement officer asks you to provide information or perform an action, you should always clarify whether the officer is giving a command or making a request.
Police officers are trained to get citizens to relinquish their rights by disguising requests in words sounding like orders. For example, the officer might say something like, “Sir, I need you to come down to the station so we can speak about what happened earlier tonight.” However, what he is really saying is, “I would like for you to come down to the station and speak to me (so I can obtain evidence to will be used against you).”
When dealing with police it is perfectly appropriate to ask politely, “Officer, are you asking me or are you ordering me?” If you are being asked, not ordered, to provide a statement or perform an action, you should respectfully decline and ask to leave (or ask the officers to leave), so you can discuss the situation with your lawyer.
- But you should always comply with police commands.
It may surprise you to learn it is illegal in virtually all jurisdictions to disobey police commands, even if the police are illegally detaining or arresting you. This rule exists to discourage citizens from engaging in physical confrontations with police officers who carry deadly weapons. If a police officer commands you to perform an action or moves to places you under arrest, it is important you fully comply with those orders. Never argue with or confront the police on the street. As soon as you are able, contact your criminal defense lawyer to take appropriate legal action against the offending officers.
- “Consent” is often a police officer’s only lawful option to support a search.
Whether the police ask to search your home, your vehicle, or your pockets, do not consent. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures and requires police obtain a warrant before conducting a search. Over time, numerous exceptions to the warrant rule have been approved. Consent is the ultimate warrant exception. If the police have no other legal grounds to conduct a search, they will ask for permission.
To put it another way, if the police ask for your permission to search, it means they have no other legal basis to support the search. Say no. Be polite, but firm, and tell the officer, “I do not consent to a search. I have done nothing wrong, and I would like to help you, but my lawyer has advised me never to consent to a search.”
- There is no value in arguing your case with the arresting officer.
If a police officer is serving an arrest warrant on you, it does not matter if the officer thinks you are innocent or guilty; the warrant gives him cause to arrest you. If the officer initiates the arrest without a warrant, he obviously thinks you are guilty, or he would not be arresting you. When you try to argue your side of the case to the arresting officer, at best you are wasting your breath. At worst, you are making incriminating statements and will cause problems for you later. What you say to the arresting officer can be held against you. The best course of action is to remain silent.
- Police investigations are designed to get convictions, not find the truth.
Police officers are trained to do one thing when investigating a crime: obtain evidence for use in a criminal prosecution. If the police ask to interview you or search your property in relation to an ongoing investigation, they are certainly attempting to obtain statements and evidence to be used to justify your arrest and eventual conviction. Law enforcement officers will make statements like, “We’re just trying to understand what happened,” but their true goal is to solicit facts to use against you. Never speak to investigators without your lawyer present. Your silence does not have to provoke suspicion. Simply state, “I haven’t done anything wrong, and I would like to help you, but my lawyer has advised me never to talk to the police without my lawyer being present.”
- The police do not have to advise you of your rights when arresting you.
It is a common misconception, perpetuated by popular movies and television shows, the police are required to advise you of your rights at the time of your arrest. The truth, however, is the police are required to advise you of your rights only if they plan to interrogate you while you are in custody, called a “custodial interrogation.” Therefore, if the police approach you on the street and question you, then later place you under arrest, the answers you gave prior to being arrested may be admissible in court. A related misconception is if the police do not advise a suspect of his rights immediately, then all charges will be dropped. Again, this is not true. The remedy for a failure to advise a suspect of his rights prior to a custodial interrogation is to exclude the suspect’s statements, including any “confession”, from the trial, not to dismiss the charges.
- You must speak up to assert your right to remain silent.
You know you have the right to remain silent in the face of questioning by law enforcement. You may not know; however, you have to affirmatively assert this right, or you risk losing (or “waiving”) it. In other words, you must speak up and make known your choice to remain silent.
If the police question you, do the following:
• Tell the officers you do not want to talk to them.
• Ask if you are free to leave. If the answer is “yes,” then leave immediately and call a lawyer as soon as possible.
• If you are not free to leave, then reassert your choice to remain silent and request a lawyer. Say, “I do not want to talk or answer questions. I want a lawyer.”
• Be quiet! Say nothing else until you have conferred with a criminal defense lawyer.
Many people are over-confident and think they can explain everything away when questioned by the police. This seldom, if ever, works. Instead, be firm and respectful in asserting your right to remain silent. If the officer thinks he has enough evidence, you are going to be arrested regardless of whether you answer his questions or not. Accordingly, assert yourself at the onset of the police encounter; do not wait to be arrested.
- If you know a warrant has been issued for your arrest, the best thing to do is to turn yourself in.
You gain nothing by waiting for the police to take you into custody. When you turn yourself in, you can avoid the circuitous route and wait longer to see a judge most arrested persons must endure. Plus, you establish a level of credibility and make a compelling argument for a low bail. If, on the other hand, you try to avoid the warrant and wait for the police to come looking for you, they will find you and they also may find evidence of criminal activity not related to the warrant. For example, assume the police have a warrant on John Smith for misdemeanor assault. The police spot John’s car and stop the car to serve the warrant. In connection with the stop, the officers find illegal drugs and an illegal weapon. Now, instead of dealing with a misdemeanor assault charge, John is dealing with weapon and drug charges too.
If a warrant has been issued for your arrest, take the following steps:
• Consult with a lawyer. Your lawyer can call the police and arrange for you to turn yourself in and accept service of the warrant.
• Line up the funds you will need for bail.
• Make sure you have nothing on you (e.g., drugs or drug paraphernalia or a weapon) when you do turn yourself in, as this will only create additional problems.
UPON ARRIVING AT THE STATIONHOUSE
- You have no constitutional right to make a phone call from jail.
Criminal defendants often will complain that the police did not honor their “right” to make a phone call. There is no such thing as a constitutional right to make a call immediately after arrest. State laws or administrative rules might require the police, a jail, or a lock-up facility to allow an arrestee to make a call, but the Constitution does not.
- If you are allowed to make a call, keep it short and stick to the immediate facts.
This is critical because all police stations record these phone calls, and the prosecution surely will obtain a copy of the recording. During this initial phone call, do not discuss the circumstances leading up to and surrounding your arrest. Do not argue your innocence or try to explain how you ended up in jail. Simply state the charges against you (if you know) and where you are being held. Ask for help in finding a criminal defense lawyer. Give your friend or loved one enough information to find you, but nothing more.
TALKING ABOUT YOUR CASE
- There (still) is no value in arguing your case with the police.
As noted above, during a police encounter, there is no value in arguing your case with the officer. The same holds true post-arrest. After you are arrested, the police may spend time questioning you. The point of this interrogation is to gather information for the prosecutor to use against you, and even get you to confess. The interrogating officer might offer to drop certain charges or promise to go easy on you or get you a better deal if you just tell him what he wants to hear. Do not believe it. In general, if the police had sufficient evidence against you to go forward with the case and obtain a conviction, they would not be offering you a deal.
Moreover, the police officer sitting across from you in the interrogation room has no real power to cut you a deal or drop the charges. Although the police can make recommendations, the prosecutor determines (a) whether the government will offer you a plea bargain and (b) what the terms of the bargain will be. Therefore, when a police detective promises you will get a particular deal, you cannot rely on that promise. Accordingly, do not make a deal or sign a confession before you talk with your lawyer. Tell the interrogating officer you are exercising your right to remain silent and then remain silent.
- The more you talk about your case, the more you put the outcome at risk.
The most common mistake made by criminal defendants is talking about their case. The key to avoiding this mistake is simple in theory but is often easier said than done: Do not discuss your case with anyone other than your criminal defense lawyer.
If you are held in custody, cellmates may be police plants or willing to turn state’s evidence to get a better deal for themselves. Conversations on jail telephones are monitored and recorded. If you say something over the jail telephone, assume the district lawyer will hear about it. Plus, jail staff typically read incoming and outgoing inmate mail.
If you are out on bail, your family members and friends will want to know what happened, and you surely will be tempted to explain why you are not guilty. Resist the temptation. Even seemingly harmless statements you make to trusted friends and family members can be used against you in ways you did not expect. Simply say, “My lawyer says I cannot talk about the specifics of the case with anyone.”
Finally, “talking” about your case includes posting information about your case on social media.
Regardless of how unfairly you have been treated, or how well your case is going, keep it to yourself. When you post on social media, you may inform the prosecution of something about your case they did not previously know, or inadvertently reveal a violation of your bail or other release conditions. Again, your lawyer is the only person with whom you should discuss your case.
THE CHARGES AGAINST YOU
- The State decides whether to prosecute a case, not the alleged victim.
Many people mistakenly believe they cannot be prosecuted for criminal acts unless the alleged victim chooses to “press charges.” This is false. The prosecuting authority, usually the State’s or District Lawyer’s Office, makes the decision as to whether suspected criminal acts will be prosecuted. Similarly, alleged victims cannot “drop” the charges. Often, the prosecutor will listen to the wishes of victims and their families, but the decision to abandon or move forward with a case lies with the government. In addition, many prosecution offices have strict “no drop” policies with respect to certain crimes, like DUI, and will never dismiss a case based on the wishes of the alleged victim.
- Ignorance of the law is not a defense.
“I didn’t know “_________” was illegal,” is not a defense to the charges against you. Neither the police, nor the prosecutor, nor the judge cares what you know or do not know about the law. It is presumed all people within the jurisdiction are aware of the law. Claiming you were ignorant of a specific provision, which you are now charged with violating, will not allow you to escape criminal liability.
- Innocence is not a basis for a motion to dismiss.
Criminal defendants will often request their case be dismissed because they are innocent of the charges against them. However, a pre-trial motion to dismiss – a formal request to the court to dismiss the charges – must be based on one of a very few, narrowly defined, technical reasons for dismissal (e.g., the time allowed to file charges has expired or the court has no jurisdiction over the case). A claim of innocence is not a valid reason for a dismissal motion. If you did not do what you are accused of doing, then you must plead “not guilty” to the charges and request a trial. It will then be up to the trier of fact, either a judge or jury, to review all the evidence and determine whether you are guilty or not guilty.
- Your good character is irrelevant to your defense at trial.
While character witnesses may be extremely helpful at a bail hearing or a sentencing hearing, they are almost never allowed in criminal trials. Subject to a few limited exceptions, character evidence is inadmissible. The issue at a criminal trial is limited to whether you did the specific thing you are accused of doing. Evidence you are a “good person,” or your accuser is a “bad person,” is irrelevant.
RESOLVING YOUR CASE
- You are not allowed to speak to the judge about the facts of your case.
You may want to write a letter to the judge or speak with the judge about the facts of your case, but this is not allowed. It is forbidden to communicate with the judge about a pending case off the record, outside of court. The judge will disregard any letters sent to him or statements made by you professing your innocence. Blurting out facts about yourself or the charges against you in court could damage your case. Let your criminal defense lawyer be your voice in communicating with the judge.
- A plea agreement is not a “get out of jail free” card.
Most criminal cases are resolved through plea deals, and it is likely, if arrested, you will be offered a plea deal. Moreover, chances are your best interests will be served by taking the deal. Be sure, though, you understand what you agree to and what will be required of you. A plea deal is not a get out of jail free card. Often, plea deals come with stiff financial requirements. In addition, you may be subjected to a curfew and travel restriction. Drug testing can also be part of a plea deal. If you think you will have trouble complying with the terms of the agreement, you may be better off rejecting a deal and going to trial. Probation violations are easier to prosecute than the crime originally charged, and the punishment can be harsh.
- A criminal trial is not a quest for the truth.
Contrary to what you may believe, the jurors in a criminal trial are not obligated to collectively piece the evidence together until they arrive at “the truth.” It is not their job to “solve” the case. Rather, the jurors’ only job is to determine whether the government, as represented by its prosecuting lawyer, has met its burden of proving your guilt beyond a reasonable doubt. To put it another way: You do not have to prove your innocence; the prosecution must prove your guilt beyond a reasonable doubt. Practically speaking, “beyond a reasonable doubt” means, after hearing all the evidence, the jurors must be truly and steadfastly convinced you are guilty of the crime charged. This is a heavy burden.
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