Criminal defendants can make a bunch of mistakes between the commission of crime and the trial. But some cause significantly more harm to their case than others. Below are five of the biggest errors that I repeatedly come across.
Please stop talking. You’re only making the case against you stronger for the prosecution. Don’t talk to the police at the scene of your arrest; don’t provide detectives with an oral or written statement following your arrest; don’t talk to other inmates on your block; and, most importantly, don’t talk on prison phones to anyone about your case.
I’ve essentially never seen a situation where a defendant helped themselves by providing a statement. Talking will only hurt your case. Most people watch too much TV and think that a cop must read them their Miranda rights upon arrest as they carefully guide your head into the police cruiser. This simply is not true. A detective only needs to provide you with Miranda warnings if you’re in custody, and if they are seeking to interrogate or question you about a crime. This almost always happens at the police station following your arrest if/when you’re taken up to a detective bureau.
So many clients tell me that their rights were violated because they were never read their Miranda warnings. And, when I ask if they ever gave a statement to detectives, their answer is, "No, they never gave me a chance to tell my side of the story."
My response to that: "Good. I don’t want you giving 'your side' of the story."
I can tell a jury your side of the story in my closing after cross-examining the prosecution’s witnesses and possibly presenting defense witnesses.Once arrested, every criminal defendant has a Fifth Amendment constitutional right to remain silent. And every defendant should exercise that right and shut up. Unfortunately, the incarcerated can’t seem to help themselves. Despite the knowledge that “this call is being recorded,” they talk about their involvement to loved ones on prison phones. They always tell me that they haven’t talked on the phones. But then, about 30 days before trial, I get a CD from the prosecution filled with hundreds of calls.
While they’re smart enough to not simply confess to the crime, they talk about their associates and friends who may have been involved; they talk about motives (“He owed me $50 from the drugs I gave him last week”); or they talk about details that only someone who was at the scene would know about. If you talk, you’re only providing the prosecution with additional evidence. And, the less evidence, the better. So please, stop talking.
4. Facebook/YouTube/TextingAll three have become integral parts of our lives in the 21st century. And while I’d like to, I know I’m not going to convince you to delete your Facebook or YouTube accounts, or get rid of your smartphones. But remember, like recorded prison phone calls, a post on Facebook or a video on YouTube is forever. You can’t take it back once it’s out there. And prosecutors and law enforcement are increasingly turning to social media to gather additional evidence to strengthen a case or to hurt a defendant at trial.
If you get arrested for possession with intent to deliver, and tell pretrial services that you’re unemployed, how do you think a picture of you holding fanned-out twenties on Facebook looks? It makes you look like a drug dealer. Delete these pictures from your Facebook account now. It may be too late, though, as others may have saved or shared them. But please don’t upload any more. This story of a guy arrested for failing to pay child support after police saw his own Facebook pictures of him rolling in money proves the point.
Imagine you’re charged with gunpoint robbery and you’re arrested moments after the robbery with no gun and no proceeds from the robbery. Sounds like a pretty defensible case, right? With that evidence alone, it absolutely is. But, then the prosecutor goes on Facebook and finds a picture of you holding a gun and giving the camera the finger. He shows that picture to the victim and she identifies that gun as the one that was pointed at her chest. Next, the prosecutor starts searching YouTube. He finds a video of you and your friends singing about how you rob people at gunpoint. How’s the evidence look now? And all of the damaging evidence is self-inflicted wounds.
Furthermore, don’t Facebook message or text anyone involved in the alleged crime. That includes co-defendants, witnesses or victims. This type of evidence can seal the prosecution’s case against you.
Take this example: You and a co-defendant are trying to make some money by scrapping copper. You break into what you think is an abandoned house and steal pipes. Nobody is home, so no one calls the police. You drive off in a van and get dropped off down the road. You text each other about where he’s taking the pipes for sale and what percentage you’ll get paid. But, police pull your co-defendant over and see all the pipes. He’s arrested and charged with receiving stolen property and burglary after a report comes in that those pipes were taken from a nearby home. Police don’t know that a second person was involved until they recover his phone and see the text messages. The phone number is traced back to you and you’re arrested with the phone that has the same text messages. Your own words are what proved the prosecution’s case.
3. Don’t Run
If police approach two people on the street and one runs while the other stands there, which one is guilty? Exactly. The police will catch you and you’re simply making the case against you stronger. The one who runs has a guilty conscience and a judge or jury understands that common sense point. Additionally a judge, at the prosecution’s request, will often read a “consciousness of guilt” instruction to the jury. So, now the facts (running) and the law (jury instruction) have hurt your case.
Additionally, if you’re in possession of drugs, a gun or other contraband, you’re providing the police with greater suspicion to justify stopping you and thereby lowering your chance of having police violate your rights when searching you. If police receive an anonymous radio call that someone wearing certain clothing on a corner is in possession of a gun, that information alone is insufficient to justify a stop of a person meeting the description. The police need more to corroborate that call to give rise to reasonable suspicion to justify a pat-down or a Terry frisk.
If you run, you’re giving the police that additional justification to stop you. Don’t give the police the justification they need and consequently make the prosecution’s case stronger. Rather stand there, let the police frisk or search you and recover what they would have recovered anyway if you ran. Then, in court, you will have a much better chance of successfully litigating a motion to suppress as the police just violated your expectation of privacy and conducted an illegal search.
2. Don’t Throw Things Away
As a follow-up to the last point, you only maintain an expectation of privacy to items that are in your possession (or in your personal property such as your house, car, wallet, purse, etc.). So, if you throw drugs away, you are abandoning them and thereby giving up or losing your expectation of privacy. Therefore, unless the police violated your rights prior to you tossing the drugs, the discarded contraband is admissible against you at trial.
If you are in possession of a gun, drugs or other contraband, and police exit their vehicle but do not indicate that they are investigating you, and you drop the illegal item on the ground, you will likely be unsuccessful in litigating a motion to suppress because you gave up your privacy right when you discarded or abandoned the illegal object. So, if police approach you on the street and you are in possession of anything illegal, don’t panic. Do not run and do not try to get rid of the illegal item. Instead, allow police to investigate, frisk and search you. While you will obviously be arrested for possession of drugs or a gun, you will give yourself and your attorney a much greater chance to beat your case by demonstrating that the police violated your rights.
1. Don’t Hire a Lawyer Who Makes Promises
“If I pay you, will you promise to beat my case?”
“If I hire you, you’ll get the detainer lifted and my boyfriend will come home, right?”
These are two questions that I often get about 10 minutes after meeting a prospective client or their family. My answer:
“No. I don’t make promises about the outcome of cases. What I will promise you is that you will get a diligent, hard-working attorney who will do all he can to fight to protect your rights, use all means at my disposal to defend against your case and communicate with you and your family about the case and all of your options. I will be honest and upfront with you, even if that means giving you an answer you don’t want to hear.”
Amazingly, I sometimes get this response: “But I just met with Lawyer X and she told me that if I pay her, I will win my case.”
My response: “Was Lawyer X wearing a black robe or a jury badge when you met with her? Of course she wasn’t. So, how can she possibly promise you that she’ll win the case when the people that decide guilt or innocence, lift detainers and grant motions to suppress are judges and jurors?”
Be very wary of lawyers that make promises regarding the outcome of a case. Many tell you what you want to hear so that you open your wallet. But, when it comes time to serve your sentence, I promise they won’t be serving that sentence with you.
I will review the discovery, get your side of the story, investigate any possible defense witnesses, and explore all possible defenses. I will also give you my advice on the strengths and weaknesses of your case.
If, after thoroughly preparing for your case, a pretrial offer is conveyed by the prosecution, I must convey that offer to you. If you choose to not accept the offer, we will fight the case together. But, I will give you my honest opinion about your case and your chances of winning. If you’re looking for promises, you’ve got the wrong lawyer. However, if you’re willing to follow the above advice, then you very well may have the Philadelphia criminal defense attorney you’re looking for.
This article was originally posted by The Fishman Firm. The writer retains all copyrights.