Wouldn't it be great if the criminal justice system were perfect? All guilty people would be convicted, and all innocent people would go free. Unfortunately, we do not live in a perfect world. Sometimes innocent people are found guilty. Even more disturbing, though, is the fact that the defendant is frequently his own worst enemy (not the state). Here are the top ten mistakes made by persons charged with crimes:
10. Hire the Least Expensive Lawyer. Some people belive that a hired lawyer-- as opposed to an appointed lawyer-- is always better. Therefore, they will shop around and
hire the least expensive lawyer. This is a grave mistake. No competent defense lawyer can handle a serious felony charge for $500 or $750. Either the lawyer has no business (probably for good reason), or he intends to unscrupulously "nickel-and-dime" the defendant through the course of the case.
9. Hire the Most Expensive Lawyer: Other people believe that the more a lawyer charges in fees, the better the lawyer must be. Just like no lawyer can competently handle a serious criminal charge for a minimal fee, it is not necessary to spend $75,000 on a lawyer for a burglary case, for example. Although an attorney's reputation is a factor in the success of the defense, the most important factor is the lawyer's legal ability and trial skills. Meet with the lawyer, ask to see an example of his or her
legal motions and briefs. Judge for yourself. Does the lawyer write well? Does the lawyer treat you, the prospective client, with courtesy and respect, or does the lawyer behave as though you are wasting his time by asking these questions?
8. Demand to Play an Active Role in Your Defense. People simply do not trust lawyers. Sometimes this reputation is deserved-- but most times it is not. If you do your homework, and you hire an
experienced criminal defense lawyer, you have done everything you can as a layperson. You must resist the temptation to "help" the lawyer by conducting legal research and proposing (sometimes
demanding) that certain pretrial motions be filed. Being an effective criminal defense lawyer requires not only years of schooling, but many, many years of experience. Much of a what a lawyer does is based on instinct and experience. A layperson, no matter how intelligent and industrious, is simply of no help to the lawyer. In fact, such "active" clients are counterproductive to the defense. The defense lawyer must consider-- and then many time reject, with lengthly explanations-- the client's proposals. You would demand that your surgery perform the surgery in a certain manner. You should not lecture your lawyer on how to defend the case.
7. Go to Trial Because You Do Not Like the State's Plea Offer. Many times, during plea negotiations, the State will refuse to amend the charge to a less serious offense. Instead, the prosecutor will offer to make a certain sentencing recommendation. Usually, the cases in which the prosecutor refuses to amend the charge, are those cases in which the proof is overwhelming. Defendants tend to react to such offers with anger and frustration. They respond by saying, "Then we're going to trial." A defendant should never go to trial simply because he or she does not like the State's sentencing recommendation. Firstly, it is only a recommendation, and the judge need not follow it. The defense attorney may also make a recommendation. Moreover, since the State probably has a strong case, the sentencing factors will not improve after a trial where the defendant is convicted. A defendant's decision to proceed to trial should be based upon a calculated risk that he or she may be found not guilty.
6. Use an Alibi Defense. To every person charged with a crime, there is the great temptation to present an alibi defense-- after all, if one was not at the scene of the crime, how could one have committed it? You must resist this temptation unless you have lock-solid proof of the alibi, such a being in jail, out of the country (with passport stamps), or in the hospital. If your alibi is that you were watching television with your girlfriend, you need to find a better defense. Once the defendant raises the defense of alibi, the law requires the State to disprove the defendant's alibi beyond a reasonable doubt. As a practical matter, though, the defense of alibi puts the burden of proof on the defendant. If a defendant presents a bogus alibi defense, the jury will see through it, and wonder why the defendant faked an alibi.
5. Demand to Testify at Trial (and then commit perjury). A competent defense lawyer will always attempt to win the case without the defendant testifying. This is because when you are one charged with the crime, it is very difficult to look good on the witness stand. The jury is very skeptical of everything the defendant says. Moreover, although juries are not perfect, they are very good at weeding out liars. Between the twelve people, they see everything the defendant does during the course of trial. If the truth will not set you free, then you should keep your mouth shut at trial.
4. Make Telephone Calls from the Jail (and then say really, really stupid things). At the Milwaukee County Jail there are large signs on the wall that inform the inmates that all telephone calls, except properly placed attorney calls, are recorded. Additionally, there is a recorded message saying the same thing at the start of every telephone call. Nonetheless, defendants will routinely make telephone calls from the jail and do such things as: (1) admit that they are guilty of the offense; (2) try to persuade state witnesses not to appear at trial; or, (3) try get a friend or family member to testify falsely at trial. It takes only seconds for jail personnell to run a search of the recorded database telephone calls, and to locate all calls made by a certain inmate.
3. Talk About Your Case With the Guys on the Pod. There is nothing to do all day while one is in jail. So most inmates sit around and talk about their case with the other inmates. Everyone who is in jail is looking for a way out. One great way to obtain a get-out-of-jail free card is to agree to testify on behalf of the state. If you talk about your case with another inmate-- even if you claim that you are not guilty-- that other inmate is very likely to turn right around and set up a
debriefing with police detectives. At this debriefing your jail "friend" will recite everything you told him about your case, only the inmate will tell the story in a way that makes you seem guilty. Then that other inmate's lawyer will contact the district attorney to discuss the consideration for this cooperation. Do not talk about your case with anyone besides your lawyer. Don't give your jail friends a free way out. Never discuss your case with anyone in the jail.
2. Refuse to Make a Statement to Police When a Statement is Necessary for the Defense. The primary reason that, if you are charged with a crime, you should immediately seek the assistance of an
experienced criminal defense attorney is because your attorney can help you formulate your theory of defense at the very outset of the case. Many times, but not always, the best strategy is to invoke the Fifth Amendment, and refuse to submit to police questioning. If, after speaking to your attorney, though, the attorney decides that your theory of defense will require you to testify, your attorney will advise you to submit to police questioning. The reason is that, although the State may not comment at trial on a defendant's decision to remain silent, if the defendant testifies at trial he has now waived his right to remain silent, and the prosecutor may cross-examine on the fact that the defendant did not submit to police questioning at the outset of the case. This can be a very damaging line of cross-examination. It is very difficult for a jury to understand why, if the defendant has a story of his innocence, he would not have told it to the police immediately.
1. Make a Statement to Police Without an Attorney Present. An
interrogation by police detectives is not a fair fight. The law provides that if a person in custody invokes his right to counsel, the police must stop questioning, and may not resume the interrogation, until the defendant has a lawyer present. Only a fool tries to talk his way out of criminal charges without an attorney present.
