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March 19, 2021 Criminal Law

Article: 1

          Our clients must recognize that they are performing at all times.  The audience might be the police, the prosecutor, the Judge, the jury, or all these people.  How others view an accused will seriously affect the outcome of a case.  In this article, I will outline some basics facts on the arrest, the right to remain silent and the benefit of an attorney.

  1. The arrest: First thing is do not run, do not flee from the police and if nabbed do not resist or fight. Most people do not flee succesfully, either the police catch them, or someone turns them in.  If an accused runs or flees, it gives the perception that they are trying to hide something.  In addition, fleeing or resisting will likely cause a person to be charged with another crime, such as obstruction.  Those acts do not look good in front of a jury or a judge.  Moreover, if an accused must ask for bail, it will, of course, have an effect.  There might be legitimate reasons a person flees.  The accused may not trust the police, the accused might be afraid the police will harm them, the accused might be afraid they will be charged with a crime even though they are innocent, the accused might not have papers.  There may be a host of legitimate reasons a person flees, and an experienced criminal defense attorney has the ability and training to project the accused in a more favorable light. 
  2. Silence is Golden: The Fifth (5th) Amendment, U.S. Constitution tells us that we have the right to remain silent.  In practical terms, it is telling us, “Do not talk to the police”; Everything a client or an accused says can be twisted and used against them.  So remain quiet, except always ask for an attorney.  Remember the police are trained to get suspects to talk; they are trained to obtain incriminating statements.  No matter how nice they act, or how they pretend to be your friend, what they are searching for is a confession, an incriminating admission.  There is an old saying in criminal law that goes like this:  “If the police thought they had enough evidence, they wouldn’t need you to talk.”  The police want to arrest suspects, they want them punished.  They want to win in court.  They want you to talk so they can use your own words against you.  Prosecutors are not much different, except they went to law school and will use their education to try and use the accused’s own words against the accused.  Prosecutors are trained to present cases in court.  Do not give them ammunition by talking to them, the police or anyone other than your own attorney.  Remember the prosecution can and will use your verbal statements, but they will also use any incriminating statement, whether verbal, written or a picture and even if found in a text, on Facebook, on Instagram, an email or in any form of social media.  Statements from these sources show up before Judges and Jurors all the time.  As an example think how it appears when there is a picture on Instagram with a defendant holding an automatic firearm, it is not a good look.  Remember, also, that jail calls are routinely recorded and played before juries.  So again, do not talk, follow the Golden Rule, do not post, do not text, REMAIN SILENT.
  3. An experienced criminal attorney: An experienced criminal defense attorney makes a difference.  The defense attorney’s skills can match or exceed the skills of the prosecutor.  This will level the playing field; it makes the scales of justice even.  An experienced attorney knows how to speak to the Judge and the jury, how to cross-examine hostile witnesses, how to conduct direct examinations of friendly witnesses and how to present evidence.    Statements made by a client to an attorney are confidential.  This is important because the client needs to tell the attorney all the facts so that the attorney can analyze the client’s case, and determine the best defense and strategy.  A trained and experienced attorney needs to know the facts to determine if a crime was committed, what crime and the possible defenses.  The defense attorney needs to know the facts to determine if a motion to suppress or some other motion needs to be filed.  An attorney will analyze a client’s case and develop a strategy to attack the prosecution’s case or if necessary a strategy to mitigate punishment.  An experienced defense attorney went to law school, practiced law, have had trials and is best at determining how the facts and the law interact.  The attorney will guide and advise the client and present the best defense.  No matter how simple the case we should always have an attorney.  Many times a client comes to us complaining they did not have an attorney and something unforeseen happened.  They want the defense attorney to fix the problem after the fact.  Sometimes it is because the trial or court hearing violated due process or was unfair; or it might be to correct sentences or because the client lost his/her driver’s license; sometimes we have to ask for a sentence to be corrected as it effects the client’s immigration status, or it might be something that affected when a person gets released from jail or when probation ceases or if the client’s record is sealed.  Many times an attorney is able to obtain results that are more favorable than the unrepresented accused.  There is a reason for the English proverb that tells us “only a fool has himself for an attorney”.