Frequently Asked Criminal Defense Question
It is definitely worthwhile to hire an experienced attorney, and not leave your case to the public defender’s office, because if you go that route, you won’t have a choice; even if you qualify for one, someone else will assign one, and you may get some young lawyer straight out of law school, who will also have dozens of other cases to work on that day, and won’t be able to invest the time to get your cases dismissed, or to win the case at trial, and the negotiation will be quick. People only get one swing at the plate, and without the right lawyer, you could end up spending more time in jail than you wanted, paying more money in fines than you wanted, and you might end up pleading guilty to a crime that can’t be expunged, which means it will remain on your record forever, and be accessible to every employer and every person who is checking your record for security purposes.
It’s not always necessary to spend a ton of money on an attorney; in fact, the most expensive attorneys often charge a lot despite the quality of their work, so I would always recommend that prospective clients talk to several attorneys and choose the one with a lot of experience with whom the client feels comfortable and who seems to communicate well. Many attorneys tend to blow smoke, making lots of promises and charging clients a lot of money, even though it becomes clear early on that they don’t know what they’re doing, or they weren’t caring for their client properly, so the right attorney is always better than the cheapest.
A public defender is often someone who hasn’t been practicing long, although it’s possible for someone to get lucky and be assigned an experienced one; the key word there is lucky. There are good and bad public defenders, although you don’t get to choose one; he or she is chosen for you, from a pool of lawyers who make relatively little money, and all of whom have a huge caseload, which precludes them from spending a lot of time talking to you or working on your case.
It’s always important to keep in mind that they have one chance in court; there are no do-overs. How the disposition of the case goes is very important, so who you have represent you is a very important choice. Many people think they can “just appeal,” but it’s not always that easy; appeals only happen if someone makes a mistake and didn’t follow the law.
It’s important to get it right the first time, because there are almost never second chances. That’s why a private attorney with experience is so important; they can get it right the first, and possibly only, time.
The police don’t have to read anyone their Miranda rights until they are under arrest and in custody, although anything you say before then can and will be used against you even then. If the police are just asking questions, and the person felt they were free to leave at any time, police can ask anything they want and make note of the answers or statements made. For example, if someone was surrounded by six police officers, and several police cars, and some of them had their guns drawn, even if they didn’t explicitly say the person was under arrest, Miranda would apply, and they have the right to not incriminate themselves.
Quite often, police will claim they were just talking to someone and that they weren’t in custody, even if it was obvious they were, which is why the back of my business card gives them some basic instructions as to what they should do if stopped by police. They should always be polite, of course, because being rude to police always backfires, but they should also ask them if they are under arrest and if they are free to leave. If the officer says no, they should understand that Miranda would begin to apply at that point, which means they have the right to remain silent and should exercise that, and they have the right to an attorney and should exercise that, as well, and if the police didn’t advise them of their Miranda rights, what they say will probably not be admitted into evidence.
Sometimes, police will tell someone they don’t need an attorney; they’ll claim than an attorney won’t help them and will just take their money, but everyone has the right to speak to an attorney at any time, and should. Miranda rights are still very important because, in some cases, statements can be kept out of the trial and, in situations in which a person’s statements are the only piece of incriminating evidence they had against someone, it could mean the difference between being convicted and having a case dismissed.
I handled a case recently in which a police officer told a woman that, if she performed the field sobriety tests the video would not be used against her in court, whereas of course it was. I objected, but the judge said it was not an issue because the police can lie to people. People should be aware of their rights and learn not to say anything to the police except to politely tell them they would like to leave and to ask to speak to an attorney if they can’t.
It is not unusual for police to keep someone sitting around on a big case for as much as 48 to 72 hours without a phone call, nothing, or to threaten a person who has kids with taking them away, or to infer that they will let the person leave if only they’ll sign a piece of paper, or any number of things designed to put pressure on them, but they have no intention of doing any of that. Their goal is to close the case and/or throw the person in jail and slam the door, and they will say anything, true or not, to make that happen.
Any incriminating statement a person make in such a situation will be a huge mistake, like a snowball rolling downhill, because it will make them accountable for everything, and it won’t matter a bit that the police lied to you.
On the other hand, a case can be dismissed for any number of reasons, such as a faulty indictment, or a situation in which the prosecution realized it didn’t have enough evidence, or if a key piece of evidence was suppressed for one reason or another, such as a police failure to advise the defendant of their Miranda rights.
A dismissal isn’t always final, however; there are a number of situations in which a case can be re-filed, such as if the prosecution moves to dismiss a case after a judge denies the prosecution a continuance because one of their witnesses failed to show up, and the judge allows the case to be dismissed. If the charge is a misdemeanor, the case can be re-filed within 18 months, at which point, the case starts over from the beginning. In other words, a case being dismissed isn’t always as final as an acquittal.
If the judge believed the police officer smelled cannabis, the search will be found to be legal. That’s why it’s important that everyone understand their rights; it’s not unusual for police to ask to speak with someone who is just walking down the street, and people need to understand that they should ask the officer if they are free to leave and, if not, they should consider themselves “in custody” and exercise their Miranda rights, whether or not the officer reads them. It also means the police would need an articulable basis to believe that a crime was being committed or was about to be committed to conduct a search; they can just search based on a suspicion.
In some cases, police may come to someone’s house and decide they want to come in and search it because they smell cannabis. If that happens, the person can stop them by simply saying they can’t come in without a warrant. Of course, the police could just sit outside the house until they got their warrant, but the people inside the house could use that time to do something constructive.
If the judge finds there was no valid reason for the search, because of a legal doctrine called “the fruits of the poisonous tree,” any evidence police found afterward would be thrown out; they can’t benefit by a bad police action. If police were just allowed to search people at will until they stumbled upon something, they could just stop everyone, which is not justified under the law; this is a huge topic in criminal law, especially in drug cases.
These cards are handy, because these issues can cause problems later on, if the police claim the person had consented to a search of their person or their vehicle, while the person will insist that they did no such thing. Since judges tend to run on law and order campaigns, they don’t want to see headlines stating that a drug dealer was freed on a technicality, so they usually side with police, unless it can be proven that the cop isn’t telling the truth.
In a recent marijuana case, in which someone was charged with growing cannabis, there were about seven 6-9-inch plants, so they were just starting to grow. The judge’s opinion of marijuana was that it is poisoning our society; just because they wear a black robe doesn’t mean every judge uses their common sense in deciding cases; many of them just believe anything the police say. And that’s why it’s important for everyone to be careful and not say anything, and ask to speak to an attorney immediately. Anything a person says will be used against them, and nothing they say will change the officer’s mind.
It’s perfectly fine to speak to police through an attorney, because the attorney will guide them away from making incriminating statements and they will have plenty of time to explain their side of the case. However, there’s another reason why having an attorney with you is a great idea.
If the police officer has ten questions they want to ask someone, and that person is represented by an attorney, that person can whisper the answers to the questions into their attorney’s ear and let the attorney convey those answers to the police. This is important, because those answers become hearsay, and hearsay can’t be used against the defendant, whereas every statement the defendant makes directly to police can.
There are other problems with making statements to police; remember that police don’t always write everything down, so the statements police testify to may not even be accurate when they got to court, turning everything into a swearing contest between the defendant and the officer. The police officer will say one thing and the defendant will deny it. To avoid all of this, remember one rule; silence is golden. Everyone has the right to remain silent, and they should politely but firmly insist on not saying anything without their attorney present.
For example, if I was presented with a case in which someone was charged with delivering 1.1 grams of cocaine – a small amount that would probably sell on the street for $50 or less – and they admitted to having had 2 grams and they split it with a friend, so they confessed to intent to deliver, which means they’re facing between 4 and 15 years in the Illinois Department of Corrections. However, there is always a way to negotiate a charge down, if the state’s attorney is someone who has sense and can be dealt with, and if you have an attorney who knows what they are doing.
That doesn’t mean anyone should expect to have a class X felony dropped altogether for a $50 fine, but the penalties can be reduced to a misdemeanor, which could possibly allow the defendant to do a couple years of probation, and after completing that, could result in the charge never being entered as a conviction. In fact, there are hundreds of different variations and possibilities available, between fines, jail, community service, work release and prison, and a good defense attorney earns their living by knowing what those possibilities are and getting their clients the best deal possible.
In a case like that, a good attorney can go to the judge and mention all kinds of great attributes; the defendant is a college student; has never been arrested; is a good kid from a good family background; as many positive qualities as I can find, but in that case, that judge’s hands would be tied; he would have to sentence according to the law. That’s why it’s important to fight before it gets to that point, and get the crime would just need to get the charges reduced, dropped or something else.
The way crimes are usually charged, it would be necessary for them to be sent to prison if they just fell on the mercy of the court if they didn’t have strong and aggressive representation. “Fighting” may not be the right term for what would have to be done, but it would be necessary to create a strategy to go against a police officer with enough drug training that he considered 15 hits of ecstasy as not being for personal use. In this case, the person would have to get their own expert or witness to support their story, and show that they were not someone planning to sell it to middle school kids on a street corner.
The only hope in such a case is in being represented by someone who knew what they were doing; some attorneys throw themselves on the mercy of the court and, in the process, actually just throw their clients to the wolves, since the judge has to follow the letter of the law, based on the charges that were brought into the courtroom.
Most police officers are good people, but there are also some who are not so good; some are very young and overzealous about their job, and they tend to be gung-ho and want to put everybody in prison. I was somewhat hardheaded when I was a state’s attorney, but over time I learned to be a little more compassionate, and able to see how things affect people’s lives; I realized that everyone with 1.1 grams of cocaine or 30 grams of cannabis, didn’t deserve to go to prison.
People need to realize that the minute they start talking, they are digging themselves into a hole, and the idea that a police officer will give them a break just because they were being nice is a mistaken assumption. A nice police officer knows that everyone has the right to remain silent, which means that a person being quiet was just protecting their own rights, and they won’t be upset. Of course, the not-so-nice ones can get upset at someone when they exercise their right to remain silent to the point that they may threaten and intimidate them, but there is nothing the person can say that would make things better, so remaining silent is your only option then, too.
It’s just not possible for anyone to talk themselves out of things, such as when people helpfully offer to tell police they only had two beers when stopped for a DUI. When that happens, they don’t realize they just admitted having consumed alcohol. Up to that point, the officer may not have even been sure what he was smelling, since many non-alcoholic beers are available that smell just like beer, but that person just confirmed his suspicions, and will not be off the hook.
“Have you had anything to drink?” is the most common question that police officers ask when stopping people, especially at night, and two beers is the most common answer. People who are pulled over should just identify themselves and ask the officer if they are free to leave. Then, they should politely say they have nothing else to say until they can speak to their attorney, and that’s it.
The biggest mistake people make is trying to talk their way out of it, and thinking that everything will be rosy if they just beg forgiveness and admit guilt, whereas everything they say is just making things harder for themselves. In a DUI case in Illinois, there are different ramifications regarding how long someone’s license will be suspended, based on whether or not they took the Breathalyzer test, although without that test, the state would have little to no proof that a person was drinking without it, unless they admitted it. The importance of keeping quiet can’t be overstated.
Remaining silent is important in all cases, not just DUI, of course. If the police go to someone’s home because a fight was reported and the man says he pushed his wife but did not hit her, in trying to make himself seem better in the eyes of police, he just admitted to a domestic battery. There are two different types of battery; the kind in which someone gets hurt, and another, in which there is contact of an insulting or provoking nature, such as an
improper poke or fondle or spitting on or slapping someone or something like that.
No one should ever say they “only” pushed someone or they did not really hit them, because they would have just admitted to battery; that’s a big mistake people make when they don’t exercise their right to remain silent; no one talks their way out of trouble. The police have heard it all and their job is basically to make arrests.
Explaining everything to the police officer won’t help the situation, even if the person was totally innocent. It’s always better to have someone else speak on their behalf, so that no admissions are made, such as where they were at the time of a crime, because such an admission could provide the prosecution with evidence against them. Without such admissions, the prosecutors may not be able to prove the person was anywhere near where an incident happened, but the minute the person confessed they were there and that they touched someone but did not hit her, they’re done.
Each and every case is different and unique and has its defenses and problems and needs to be scrutinized very closely by someone who is knowledgeable and has the experience and the time to handle it properly. Regardless of how good a public defender is, there is only so much time available if they’re handling dozens of cases at a time.
Another problem with relying on a public defender is that there are sometimes aspects of cases they can’t handle.
For example, someone charged with DUI can get a statutory summary suspension; if they did not blow, they face a 12-month driver’s license suspension, while if they did blow, they face a six-month suspension if the reading is over a 0.08 BAC, but because this isn’t a criminal jailable charge, a public defender won’t be able to handle it.
Quite often, police officers don’t read the warnings properly, or they don’t have sufficient probable cause to pull someone over in the first place, so there are often a number of issues that could result in the license suspension being thrown out, but a public defender isn’t allowed to represent someone for that; for that, the person needs a private attorney.
It’s also important to ask what the attorney charges, and whether they allow payment plans and/or take credit cards; whatever is necessary to pay the bill; even the best attorney in the world isn’t worth it if a client can’t afford to pay them. On the other hand, if you can find the right one and can work it out, make sure they have the experience, including their courtroom experience and find out their typical results.
If you can manage, it might be a good idea to see the attorney operating in the courtroom, to see how they handle themselves with the client, as well as judges, prosecutors and other court personnel. See if they look comfortable doing what they were doing, as to looking inexperienced and out of their depth. The client should understand that just because an attorney had a law degree in law doesn’t mean they have the experience or the knowhow needed in their case
Likewise, a good attorney will want to know everything about their client’s background, including any prior arrests or dispositions, because he has to know if his client is on probation or parole. Most of what happens in a first meeting is fact-finding; with attorney and client each getting the basic information from each other, but it should be open for both sides.
It’s also important to ensure that an attorney is accessible; for example, I am accessible 24/7, which means, if a client calls me at 3 a.m., I will be available to talk, because my clients are my lifeblood. I do not mind picking up the phone at 3 a.m., while other attorneys will be unable to be reached; some of them spend very little time with their clients after they get their money; they don’t take or return calls, and they don’t discuss evert aspect of the case. What good is having an attorney at that point? I often deal with people who are disgruntled with other attorneys.
Of course, it works both ways; just as it’s nice for a client to be able to contact their attorney whenever they need to; it’s also nice for an attorney to be able to get a hold of the client whenever necessary. The basic information an attorney needs from the client is not all the information they will ever need; the attorney has to look at all facts as closely as possible, including some that weren’t discussed early on, like the police reports.
In Illinois, the person isn’t entitled to the police reports on a felony case until arraignment, which usually takes place four to six weeks after arrest. People usually ask the attorney how the case looks, but the attorney won’t have an idea based solely on the defendant’s side of the story; they also need to see what the police and prosecutors have to say before giving an educated assessment of the case.
Many attorneys will take your money and use smoke and mirrors and tell the client they’ll take care of them and to leave it to them, as they take their money. Clients facing charges need an attorney who will look over the facts and also go over them with the client, and tell them the truth. The client needs to know everything, good and bad, and they have to feel comfortable with the attorney; they shouldn’t feel as if they were being talked down to or that they weren’t part of what is not an easy process.
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