Ok, you’ve been arrested and charged with a criminal offense. You probably have a bit of embarrassment about the incident. You may not have done anything serious and it may be perfectly explainable, but after a night in jail and perhaps a bit of sobering up, the center of your brain that says, “Shame on you” has been working overtime. What comes as a natural defensive response is to start rationalizing about the facts and your culpability. The charged offense doesn’t matter. Was it murder? Or was it simply public intoxication? It really doesn’t matter because the thought process is the same. The reactions of your brain to what has happened to you are the same. The only thing different is the consequences. If you don’t care about your reputation, your social status, your driver’s license, your freedom or your pocketbook, stop reading now. If you don’t care about anything, there’s no point in even thinking about hiring a lawyer. But, on the other hand, if you would like to retain the dignity you had prior to the arrest and the freedom you enjoyed before they put the handcuffs on you and threw you in the back of the police cruiser, it’s time to see what you can do about it. What you can do about it depends on numerous factors.
First, the seriousness of the charge against you. Although grisly murders get the most press attention, most crimes are rather ordinary. A lot of them are the result of a moment or two of very poor judgment. A lot of them are the result of having a drink or two (or five) too many. Many of them are the result of years of experience with one person and simply balling up the last 10 years into 10 minutes of action. It may not come as a surprise, but most crimes would not be committed if the person arrested knew that he or she was going to be arrested. I say most because there are some things that are done that are done without regard for the law or personal safety or outcome.If the charge against you is a felony like Murder, Robbery, Burglary, Rape, Child Molestation or theft of a large amount of money over a long period of time, the prosecuting attorney is going to view the matter harshly. The penalties upon conviction can range from felony probation to life imprisonment. But, the charge itself means nothing without enough evidence to convict you.
Secondly, the seriousness of the charge is only a problem IF there is sufficient evidence to not only link you to the crime, but to convict you of it. It will be difficult if not impossible for you to tell ho much evidence there is against you. At your first meeting with your prospective lawyer, he may not be able to tell you how much trouble you’re in. Of course, if you’ve confessed to the police or the victim is well known to you and the act was committed in a public place with numerous witnesses or there is a video, the evidence is very problematic. Even so, whether or not you are guilty is not your lawyer’s concern. His job is to make the best of your situation and assist you to achieve the most favorable outcome. Sometimes a $10 fine is unjust if you are innocent and 10 years of prison may be a great deal if the evidence against you is incontrovertible and the maximum sentence is life. Each case is different. And so is each defendant.
Third, your individuality counts. Are you on probation? Do you have a long prison record? Or, are you an Eagle Scout who donates 10 hours a week to a charity who simply made a bad choice at a bad time? If you are on probation, your case becomes more difficult because the general feeling among judges and prosecutors is that you’ve been given a chance on probation and you’ve failed on probation. This means the next step is prison. What your lawyer can’t do is to change your history. If you have a long arrest record with many serious convictions even a trivial felony case is going to be dealt with harshly.
Fourth, do you have character witnesses? Have you lived in such a fashion that people who’ve known you for a substantial time would testify that the crime in question is not in your character? Character evidence can go a long way in may cases.
Fifth, did you do it? Although being innocent of a charged crime is very helpful to a successful resolution to a criminal action, it is not necessary nor is it determinative. There are innocent people in jail. What may come as a surprise to you is that many if not most jurors believe that if you’ve been arrested by the cops for something simple like drunk driving or complicated like tax evasion, you wouldn’t have been arrested if you didn’t do it. Each juror will be instructed on the presumption of innocence and told to keep an open mind, but most of them will be thinking, “I wonder how he did it” not “I wonder if he did it.” Being innocent is a major factor in criminal defense, but it is not a guarantee of acquittal. The sad fact is that the above-mentioned prejudice against defendants is enough to sway a lot of juries. The Judge will tell the jury in several ways that the Prosecution has the duty to prove the case beyond a reasonable doubt. Yet, upon some probing questioning by your lawyer, you will hear over and over again from jurors, they want to hear from both sides before they make a decision. The judge will then explain that the defendant doesn’t have to take the stand and explain everything. The juror will think, “Why not.”
Sixth, did you pick the right lawyer? If you did, he will have asked you many questions, explained your options and told you that he works for you. You are the boss. He will give you the benefit of his experience and judgment, but he will not tell you what to do. Now, this brings us to the topic of what you should tell your lawyer.
The short answer is “Everything.” If you were to go to a doctor and had a problem with your foot, you wouldn’t tell him to look at your hand, would you? You may not understand why the lawyer asks the question, but there is a reason. And sometimes the reason is to simply see how you react. Sometimes your reaction tells him more than the words that come out. Does your lawyer believe you? Of course, he does. You are paying him to. But you’re not going to pay the jury. And if you tell your lawyer a story only an idiot would believe, he will believe it. This means you have an idiot for a lawyer. This situation is not ideal.
Your lawyer only has so much time. You need to be factual, accurate, and succinct. You need to tell the lawyer all he asks and everything that he didn’t ask for that you think might have some relevance to the charged crime. There have been times I’ve been in trial with a jury in the box, testimony on record when a client says something to the effect of, “I probably should have told you this before, but…….” Usually, it’s something that would have certainly changed the approach to the trial if not the outcome of the trial itself.
When your lawyer asks you what time it is, tell him what time it is, don’t tell him how to make a watch. You may be a great, engaging storyteller and you want to give the lawyer all the sound effects. Don’t. You may want to remember your 10th grade English assignment to fill your essays with adjectives to make it descriptive and colorful. Don’t. You may want to leave out some details to make it more mysterious. Don’t. You may feel that you have to justify your actions. Don’t. All your lawyer wants are the facts. Barebones facts. Soon enough your lawyer will know the extent of your abilities in front of a jury or judge. At the initial meeting, tell him all the facts.
Not long ago I was interviewing a couple that had been in a domestic dispute resulting in the husband being arrested for a felony. It appeared that the police simply misjudged the situation and the man was truly the victim of circumstance. I asked the wife, “were you on medication?” I don’t have to tell you the reason that was important, but I needed to know if she was on something when she took her last does, what the side effects were and how long she had been on the med and if she any unusual reactions to it. It as a simple question, yes or no.
The answer I got, or more correctly, didn’t get started off something like this. “I went to the grocery store. I had planned to have a party for my 11-year-old daughter, but I had forgotten that I needed to go and get some flour or a cake mix. Sometimes I’ll make a cake from scratch and sometimes I’ll take the shortcut from the mix. I didn’t feel 100% and had our dog with us. I had to have my daughter and dog stay in the car. The dog likes to ride in the car which is why I took him, but because it was hot, we couldn’t leave him in the car. My daughter stayed with him.
I let her go on a couple of more twists and turns and I finally interrupted her and simply asked her if she was on medication and had she taken her does that morning. She responded, “That’s what I’m trying to tell you.” We had a short conversation where I told her that I was going to ask her the question one more time and the only words she could use to answer the questions were, “Yes” or “No.” She responded that she wasn’t on medication, but after 15 minutes of listening to her, I wished I was on medication.
When a lawyer stops you from telling him something, he’s not trying to be rude. The good thing about layers is they never have to try to be rude, it comes naturally. What your lawyer is trying to do is to et an answer that might be admissible in court. When a client rambles, a judge will admonish him/her. This is never good in front of a jury. When the judge has to talk to a defendant and tell him to answer the question, juries get the impression that the defendant is being evasive and the judge is sending them a message that the person should not be believed.
The way you answer questions in court is NOT natural. For example, if you’re walking down the street lined with shops with your significant other and she asks you, “do you have your wallet?” She doesn’t really want to know if you have your wallet. She wants to know if you have the ability to pay for something she’s seen in the shop window. Your wallet doesn’t pay. Cash pays, credit card pays, PayPal pays, but the wallet is irrelevant. And you know what she wants.
If your wallet is in the car, but you’ve kept a credit card with you, as well as some cash, you might respond, “I have it,” even when it’s in the car. It is human nature to answer the question that we think the questioner asks, not what the questioner actually asks. This is compounded by the fact that many attorneys don’t really know how to ask proper questions. Your lawyer will go over your method and manner of answer questions. He will not tell you what to say or suggest that you change the facts.
Most of us have pet phrases that we use in everyday conversation. One of the most troubling is “I don’t recall doing…..” “My recollection is……” This type of response gives the listener the impression that you are not affirming or denying that an action took place, but rather you are simply saying you don’t remember. And if it’s something the juror thinks you should remember because of the seriousness of its significance a negative impression will be formed. Again, a lawyer can’t change 40 years of your method and manner of speaking, but with a bit of work, the negative effects can be minimized.
The most important advice is to tell the lawyer the truth. You are not being judged by your lawyer. When a person goes into an emergency room with a broken arm, the physician doesn’t care or need to know if the person broke his arm stealing money from the church poor box, or if he broke it rescuing a child from in front of a runaway bus. The doctor only wants to set the broken limb.
Your lawyer is a criminal lawyer. He’s heard worse and he is dedicated to protecting your rights. He wants to make sure that any evidence against you was obtained legally and within constitutional bounds. He will not condone your conduct or tell you that what you did really wasn’t bad. He will not care. He wouldn’t be a criminal lawyer if he did. This is not to say that criminal lawyers are amoral. It is to say that the lawyer has a duty to protect and defend the constitution and your rights under it. What he cannot do is support you if you tell him something and then tell him that you want to lie on the stand.
Well, I know you’re thinking if I did it and tell him, how can he represent me? He can do a bang-up job representing you. He can defend you if the evidence is weak. He can prevent you from committing perjury and increasing your criminal exposure. And ethically, he is bound to propound your defense even if he knows that you are guilty. How?
Let’s say you tell your lawyer that you robbed a 7/11 convenience store. The security cameras don’t have a clear picture of you. The only evidence against you is the clerk’s identification. The lawyer can ask the clerk if he wears glasses. If he has a prescription for them and wasn’t wearing them, your lawyer can ethically argue that the clerk was not in a position to form a good opinion as to the identity of the robber. This is so even though your lawyer knows that the clerk is not mistaken. If he catches the clerk in innocent misrecollection, he still can argue to the jury that those missed details are important. He can further argue that the evidence is not beyond a reasonable doubt. And many times it isn’t.
Do not lie to your lawyer. As we’ve discussed your lawyer is bound to believe you and check out each lead. Do not send him off on a wild goose chase because all he can bring you back are wild geese. You will cause him to spend his time chasing down rabbit holes which could much better be used in effect methods to defend you. I had a client who told me he was at a fast-food restaurant during a burglary. The police report indicated that they were following his car and saw him go into the Home Depot where burglary tools were bought by his accomplices. He maintained that he never went into the Home Depot when his friends did and was at the Jack in the Box. It took me many hours to get the security department of Jack in the Box to let me view the video. Because the restaurant had several entrances and there was a camera on each entrance on each cash register and on each driveway, I had to view videos from each of them. I finally got the okay from the manager to come view. She told me that she reviewed the tapes before she called me and my client wasn’t on the video in the time frame indicated, Since the police were following him and had the exact time on the report I knew the time parameters. I viewed the tape and didn’t think my client came into the restaurant. I called him and he viewed the tapes with me. After several hours of setting his viewing up and after a couple of hours of viewing, he finally admitted that the reason he wasn’t on the tape was because he wasn’t there This did not improve our relationship. I had told him the difficulty I had to procuring the video viewing, but he said he was there, I was going to do whatever it took so I could prove he was there. He told me over and over again, he was there. But he wasn’t. I’m sure I could have done anything with the 6 hours I wasted trying to prove something that wasn’t true, that would have helped him in his case. What I did know was that I lost several hours, I lost any trust I had that my client would be honest with me and that I couldn’t trust anything he said. On the other hand, my client knew that I would go to the ends of the earth to prove that his statements were true. This is only helpful in cases where you tell your lawyer the truth.
The lesson to be learned from this piece is that when you hire a lawyer tell him everything in a concise manner. Answer his questions. If he wants more information, he will ask for it. And when you answer those questions tell him the truth, no matter how embarrassing or unhelpful you think it might be. Your lawyer can’t help you unless you help him.
For a free criminal defense consultation please contact us at 562-437-6418.