19 Things Your Criminal Defense Lawyer Wishes You Knew

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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.

ABBREVIATED LIST

1. 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

1. 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.

2. 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.

3. “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.”

4. 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.

5. 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.”

6. 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.

7. 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.

8. 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

9. 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.

10. 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.

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