Things Your Criminal Defense Attorney Wishes You Knew

lawyer at stand

Know Your Rights

There are many misunderstandings about the criminal justice system and what someone should do before, during, and after an arrest. What most people think they know about the process can lead to more trouble and often, additional charges. The better you understand how the system truly works, the more likely you are to avoid surprising and costly mistakes and assert your rights.

Before An Arrest

You do not have to consent to a police request, but you do have to comply with their orders.

There is a difference between comply and consent that many people confuse. Failing to comply will almost always lead to additional charges. Asserting your right to not consent will give you time to talk the matter over with a criminal defense attorney before accidentally waiving your rights.

For example, if a law enforcement officer asks to “come in and look around,” they are really asking for your consent. Once they have your consent, they can lawfully take action. It is your constitutional right to respectfully decline by saying, “I do not consent to a search.”

On the other hand, if an officer has a warrant signed by a judge, it is best to silently and legally comply rather than argue or attempt to move or remove anything. In addition to your pockets, vehicle, or residence, this also applies to your cell phone.

Police investigations are meant to obtain convictions, not find the truth or “whole story.”

A prosecutor’s job is in the title. Prosecutors are entrusted to protect the public’s safety and punish those convicted of crimes. They have an army of police officers and other personnel trained to collect enough evidence for a criminal conviction and an almost endless number of resources.

This is why it is imperative to have an experienced criminal defense attorney as your resource. When an officer tells you they would like to “understand what happened,” it is not only okay, but it is best to only say, “I would like to help you, but I have been advised not to speak to police without my attorney present.” Do not be concerned whether or not it makes you “look guilty.” Be more concerned that you say it clearly and respectfully.

Police do not have to “read you your rights” before or while they are arresting you.

It is very common for people to contend all charges should be dropped because the officer failed to advise them of their Miranda rights during the arrest. First, police only have to advise someone of their rights prior to questioning a defendant while in custody. This is called custodial interrogation. Second, even if they fail to do so, the charges are not dismissed. Neither a judge, nor an officer can dismiss a case. Only the prosecutor can dismiss charges. However, it is much more likely the prosecutor will simply exclude the suspect’s statements made during that particular custodial interrogation.

You have to speak up to assert your right to remain silent.

You have to firmly assert your right to remain silent until your lawyer is present, or you may risk inadvertently waiving that right. If you are questioned by the police, do the following.

  • Tell the officers you do not want to talk to them. (Understand that it is highly unlikely that you would be able to explain things away.)
  • Do not make the common mistake of asking them if you need an attorney.
  • Instead, ask if you are free to leave. If yes, leave and call criminal defense attorney as soon as possible.
  • If you’re not free to leave, then again, respectfully verbalize that you cannot answer any questions without your attorney present and that you are officially requesting one.
  • Say nothing else and comply with their commands.

During An Arrest

There is absolutely no benefit in arguing with a police officer, especially one that already has a warrant for your items or for your arrest.

If a warrant has been issued, it is law enforcement’s job to arrest you whether or not they think you are guilty. If an officer arrests you without a warrant, he or she clearly already thinks you’re guilty. Arguing about it will only give the officer additional information they may not have had that will be used against you later in the process.

If you know there is a warrant for your arrest, The best thing to do is to turn yourself in. You can arrange this through an experienced criminal defense attorney for the best results. Turning yourself in is good for your case for several reasons.

  • You don’t run the risk of being arrested at work.
  • Warrants can be and are often executed anytime of day or night. Imagine several law enforcement officers banging on the door of your residence in the middle of a Saturday night while you're sleeping - then being handcuffed and placed in the back of a cruiser wearing only your boxers or pajamas?
  • It helps avoid the possibility of additional and unrelated charges. For example, should police stop a car due to discovering there is a warrant for the owner and find illegal drugs, or weapons in the vehicle, there will be additional charges.
  • It helps your defense attorney in their argument for a low bail or “own recognizance.”.
  • It gives you time to gather funds for bail.
  • It can reduce your jail-time wait for your first appearance in front of a judge.

Post-Arrest

There is no Constitutional right to make a phone call.

Many people believe there is a Constitutional right to make a phone call once arrested. This is not true. In States and facilities where a phone call must be allowed, the defendant should keep the call brief without details about the arrest or possible reasons for the arrest. If arrested unexpectedly, all someone who can work on getting bail funds. Only tell them where you are, what the charges are, and ask them for help to find an experienced criminal defense attorney.

Be aware that almost all jail calls are recorded.

After you are arrested, law enforcement may want to ask you more questions. Their purpose is the same as during the investigation - to gather evidence for a criminal conviction or obtain a confession. Your right to remain silent is still intact, but you again must respectfully state your choice to remain silent until your attorney is present.

The biggest mistake defendants make is talking about their case.

In order to improve your chance for the best outcome possible, do not talk about the details of your case with others inside or outside of jail. Mail is usually screened as well. Do not make the mistake of thinking you can talk or write in a code that law enforcement cannot decipher.

Once you're out on bail, resist the urge to tell friends and family why you’re not guilty or other details of your case. This may be harder than it sounds, but it can harm the outcome of your case in ways you may never imagine. Resist the urge to read and post things about your case on social media. There is no way that helps your case, but many ways it could hurt the outcome.

Resolving Your Case

Having an experienced criminal defense attorney on your side when facing a criminal charge will greatly improve the chance of an outcome in your favor. No attorney can guarantee results, but an experienced attorney will work to meet your goals in the best defense of the case.

In conclusion, whenever being investigated or arrested for alleged criminal activity, respectfully but clearly assert your rights, comply with law enforcement, and contact a criminal defense firm as soon as possible.

Call today if you or a loved one is the subject of a criminal investigation.

Written for The Law Office of Brian Jones

  • by Benjamin Jackoby, Ph.D.
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