When you find yourself charged with a crime, it is normal to go through a state of shock. After all, if you’re like 90% of our clients, you’ve never been in trouble before. Nearly half of our criminal defense clients have never even had a speeding ticket. An arrest and possible jail time is an unthinkable situation for most people.
In response to this state of shock, we often hear about every wonderful thing our clients have done in their lives. They are not “criminals” and this can’t really be happening. This is a tough spot for defense attorneys. We see this phase so often that we want to blow right past it and move to important things—relevancy and admissibility. It can seem that we don’t care. We do! However, our job is to care by doing what is best for you. This means getting to the facts of the case, the elements of the crime, and what we will use to negotiate a resolution in your favor.
The Interview
When interviewing a client, defense attorney are concerned with two basic rules in criminal procedure: 1) is the information provided by my client actually relevant, and 2) if it is, will it be helpful with negotiating a pretrial resolution or, if the case goes to trail, will it be admissible in court. This means, when a DUI client tells us that the car isn’t registered to her, that is not relevant. Vehicle registration is not an element of the crime of DUI. And, if you tell us that you can’t go to jail because you are a single parent, that is not relevant to the elements of your crime. We are listening for things such as, “I was drugged and therefore I was involuntarily intoxicated” because voluntary intoxication is relevant to the elements of the charge of DUI.
To understand why we get so focused on relevancy and admissibility, you need to understand how crimes are charged and how a prosecutor’s office works. When you are arrested for a crime, the officer has some discretion whether to arrest you and what he will write as the crime you committed. He just needs to believe there is probable cause (a fairly low standard as compared to beyond a reasonable doubt in a criminal trial) to believe you committed that crime. When the prosecutor receives the police report and reviews it for probable cause, she can 1) agree with the officer and charge you with the same crime as listed, 2) find there was no probable cause and release you, 3) find additional crimes were committed and add to your charges, or 4) find the facts warrant a higher level of charging such as a felony level crime rather than a misdemeanor. This means the criminal charge is never really “set” until a prosecutor sees the reports. This also means your defense attorney never really knows how good or bad your case is until the reports are provided.
Are There Bad Facts?
When discovery is provided to us, we also look for other “bad facts” that might hinder the strength of your case. These are not necessarily facts that relate to relevancy and admissibility but have more to do with how you interacted with law enforcement. Most prosecutors have drawn a much tougher line when it comes to misconduct or foul language with law enforcement. If you were calling the officer a “pig” or said “my attorney will get me out of this,” the prosecutor will be less likely to see you as a person who is genuinely remorseful. So, while the defendant before you with an identical DUI scenario received a Pretrial Diversion Agreement, you might not be offered the same deal if you called the officer names during your arrest. If drugs or alcohol was involved in your arrest, you might not remember doing something so out of character. Unfortunately, law enforcement never forgets to write these facts down and they are serious factors for us as we determine how to negotiate a case.
When you meet with your attorney, please realize that information is being “processed” as you’re talking. If the initial meeting seems a bit like an interrogation, that is usually because we’re trying to find relevant facts to know before heading into your first appearance or arraignment. No defense attorney wants to be blind-sided. We also need to know if you have criminal history. Nothing looks worse to a prosecutor than a defense attorney who claims the client has no criminal history but is then surprised by the secret out of state DUI or theft charge. The defense attorney instantly loses all credibility (and negotiation strength) if inaccurate or false statements are made. Your attorney should know the good facts but it is absolutely critical that he know the bad facts, too!
Have Patience
As the case progresses, the reality of how a prosecutor’s office runs becomes even more important to understand. It is NOTHING like you see on television. There are hundreds of cases assigned to a prosecutor and she is juggling far more than a private defense attorney. In most counties, prosecutors are on triage mode. This means, if she doesn’t have your case set for trial next week, it is not relevant to her work load this week. Negotiations happen at the leisure of the prosecutors and they have very little time to talk, email, or negotiate. There will be some discussion with the prosecutor in court but, typically, that will be under 5 minutes due to dozens of other cases set for the same time. Most negotiation happens via email. Your attorney begins “the attack” against the elements of the crime and whether the prosecutor can convict you of the crime charged. The prosecutor might respond quickly or, if in trial or busy, respond a week later. This stage is all about relevancy and admissibility. Unfortunately for clients, this stage takes time.
When this phase becomes drawn out, clients often get quite frustrated. It seems unthinkable that you would have court on Wednesday but the prosecutor won’t respond to your defense attorney’s emails until Tuesday (or the morning of court on Wednesday). This is just the reality of criminal defense. It is stressful and there is nothing we can do about it. Whether you need to arrange child care, take time off of work, or handle a family emergency are all irrelevant to the prosecutor. They don’t care if you’re in limbo. They don’t care if you will lose your job or business. They don’t care if you’re a single parent. The response is the same—don’t get into trouble if you have that much riding on you. In the criminal justice system, the only facts the prosecutor wants to hear are those that are relevant to the crime charged. It is a rough reality that we try to prepare our clients to understand.
Seek Wisdom Over Wives’ Tales
For this reason, if you have trouble managing the uncertainty and the stress of being in limbo, it is important to find a counselor or friend who can help you manage that anxiety. We suggest you don’t include people who focus too much on “this is an outrage” or “my friend blew a .18 and he never went to jail.” The advice from this type of friend tends to be counterproductive for your case. Rarely, does the friend understand admissibility of evidence and how that played into the outcome of another person’s case (i.e. perhaps their other friend was pulled over on a pretextual stop and evidence was excluded as a result of the motion). If a great resolution is reached for your case, the “outraged” friend can keep you from making a good decision moving forward. Let your friends help with stress but let your experienced criminal defense attorney (who has prosecuted and defended a 1000+ criminal charges) give you legal advice.
We understand that it feels unfair to be just a case number. We try to soften that reality the best we can. Everyone in our office knows that clients are stressed and facing life-changing consequences as a result of a criminal charge. We definitely get it! However, it is our job to provide the best defense for you and negotiate the best outcome for your future—which may not include sharing your personal story. In fact, most of the time, we don’t want to get to the “share your hardship” phase. If you’re sharing your story, it is probably because you’re in court for sentencing, which means you were convicted at trial. That is not the outcome we want for you.
This long and overwhelming process is handled better with a support system. As a result, we strongly encourage proactive self-care and looking for ways to manage stress. We understand that you are scared and want the prosecutor to hear about everything you stand to lose. After all, that is typically all our clients can think about. We simply can’t do that and the prosecutor won’t have it. Please understand that it has nothing to do with a lack of compassion. In truth, we do care and our passion is finding fair resolutions. Caring for our clients means we will always stay focused on what will actually help you. We are in your corner and we will use everything that is relevant and helpful for your defense.
