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Criminal Defense FAQs

Hiring a Criminal defense attorney for a criminal case is a great idea. If you’ve been charged you must assume that the government is intending to actually punish you, convict you. If you don’t fight you can’t come back later on and try to fix it; it’s now or never.

My thought is, if you don’t think that you’re important enough to fight for, then why should anyone else bother? But if you believe in yourself enough to at least give yourself the best possible chance then that’s exactly the attitude you should take by getting an attorney. Attorneys know cases and laws that you haven’t even thought of. They know tricks and procedures that you could never know.

They know all the judges most of the time, they know the prosecution; they have relationships with those people. They know other people who have done well and they have resources that they can pull to the front so that they can try to get you a good result. If you go to court by yourself thinking, “Oh the result is always the same, so why bother with the expense,” or, “Why go to the trouble?” you are dead wrong, because I have in my office won many cases on technicalities I couldn’t have told you on the first day when we first started talking about the case how I was going to win.

Even on the day of trial before the trail, I couldn’t have told you how we were going to win, but it happens all the time. I did it last week several times and it’s something that you need to rethink. If you believe that you can do better than a trained lawyer, someone who has a little bit or experience and says, “Oh gosh you can do this all by yourself.” They can’t possibly have as much at stake as you or as much skill as a trained attorney.

Now how do you know you’ve got the right person? You should interview that person, talk to them whether it’s on the phone or in person, find out if they have the background and some skill under their belt, and if they also have the willingness to fight for you. If they care enough to fight for you, they’re willing to spend the time.

Many times you can tell that they’re not willing to spend the time because they don’t seem to care, or they might offer to do this for you at such a low cost that you know they’re not going to put in any time. A well-trained attorney is someone who is going to put in some effort and they don’t just give away their time. You have to interview them and see if you feel the confidence and then hire the person you like that way.

Judges know because they see it every day when a person loses a case because of a lack of skill. They also know when a person wins a case because of a skillful defense and so judges would give you the practical advice to get an attorney, but they also have an obligation to offer a person a chance to have council because it’s your constitutional right to have a lawyer.

If you have the risk of going to jail they’re going to make sure that you either have been offered an attorney, or time to get a lawyer, or you’ve waived your constitutional right to a lawyer. Judges are not going to assume that you can do this as well as a well-trained attorney, because they see it all the time. Take advice from judges; go to court and watch and you’ll see they don’t let people just go to trail when they have the risk of serious consequences without having considered the option of an attorney and that’s for a real good reason.

Having any attorney is better than not having an attorney. As a matter of a fact there’s an old saying that says, “He who represents himself has a fool for a client,” and that’s because people who represent themselves, even if they have some legal training or they are a lawyer, can overlook obvious things or they can’t make arguments in their own favor as well as a lawyer can. When it comes to having an attorney, public defender or private lawyer both are way better than defending yourself.

Private lawyers tend to have more time to devote to your case, so they are hired by you to do the work of spending time to sort out your case and defend you and public defenders often have a lot of work to do and can’t focus on you that much. You can see that in little things– it might be hard to get them to answer phone calls, or hard to find them available to do appointments. It’s just the way their offices work.

They handle lots of cases for lots of indigent clients, which brings up another point: public defenders many times are not available to the general public, because public defenders are there for people who can’t afford a lawyer– a right which is given under the constitution.

Most of the people that I represent aren’t even eligible for public defenders. Some are and choose to hire me anyway, just because they manage to find some money and they know they don’t like the treatment they’re getting from public defenders. They want their defense to be a little stronger, a little more personal, and I guarantee that I’m going to put in good effort to represent them.

From my perspective it’s not a question of choosing between public defender and defending yourself; it’s between having a private attorney and defending yourself because most people don’t qualify for a public defender anyway.

Everyone wants that defense to work because everyone thinks because of TV that Miranda is the thing that gets them off—they think that if they didn’t hear it from the police officers they should be acquitted, and that’s just not true. Miranda is a law which helps in a very select set of circumstances. The Miranda case says that, “If you are under arrest you cannot be interrogated while under arrest without having your rights read to you.”

If a person is under arrest and the cop says to you, “You have the right to remain silent, anything you say can and will be used against you,” and then you say, “I want a lawyer,” then they continue to ask you questions and you tell them all of the facts they need to know to convict you, that would be an example where Miranda would help, but it’s as you can see from what I just told you it is limited to a specific set of facts. There are other cases which might be better which could get a case dismissed, which aren’t exactly Miranda.

For example, if a person is asked a bunch of questions and the officer seems to have bullied them, so much that the actual discourse between the person and the cop is not by consent, then that can get all of the statements thrown out. If the statements are thrown out and the government can still make its case then you can still be convicted, but without those statements, if you cannot be convicted then you win.
There are other cases besides Miranda, but Miranda by itself doesn’t always save the day. As a matter of a fact I’ll use it whenever I can but it’s not a one stop shop for getting a case dismissed. I represented a person one time who was stopped by police. He was sort of a slow thinking person I’ll say, and he was walking down the street when the police had been called to look for a person who had just robbed a house, and so when they came upon him they thought he was that person.

They came up to him and they started asking him questions, and honestly I wouldn’t want him to be questioned. He said all the wrong things and the police probably got excited about the fact that he was telling them what they wanted to hear and just continued to ask him questions even though they had sat him down and they were hovering over him so that he couldn’t get away, and he certainly didn’t have the right to leave.

I’ve got to use the Miranda case to have all those statements thrown out, and it turns out the statements were the only evidence they had against him. Now, I make it sound like that case is the only one that’s ever worked and it’s not the only one, but that was the clearest one because I actually got to say, “Miranda says you shouldn’t do that.” The judge agreed with me and said, “Yes Miranda does limit that,” but most cases they get excluded by other laws which tend to limit the police’s ability to question a defendant before he’s arrested.

Miranda rights are relevant, but Miranda rights are not the best, most common way to get a case dismissed. If you watch a lot of TV you would think that Miranda comes up every day, all the time and is used to get cases dismissed very regularly. That’s not the way it really is in real life, because Miranda applies to a very limited set of situations. If a person has already been arrested, which is different to just being stopped, and the police want to ask questions and then they do ask questions without reading the person their rights, then Miranda could be involved.

Many people aren’t really arrested when they’re asked questions and they think that Miranda will save them, and so I’m forced to try to make the court believe that they were really under arrest using other cases which define the moment that a person is under arrest. It’s a much harder case when I’m trying to get the court to see that they’re really under arrest when they were asked questions.

There are other cases that are similar to Miranda, that are much more useful because questioning doesn’t always have to be when a person is under arrest; it can be when they’re just stopped on the side of the road in a car. If the police tend to bully a person, then that implicates a law which says that questioning and field sobriety tests and other tests and questions should be by consent, but in this case weren’t given by consent because the officers bullied them. Those are probably easier to use than Miranda, but yes Miranda still works in 2015 and it’s been highly scrutinized, so it’s very specific.

Everyone loves to hear “Not Guilty.” The lawyer loves it, the client loves it. It’s what you look for, but to get that you have to represent yourself effectively and well in court. Most of the time it’s getting a competent lawyer who knows what they’re doing, and so you have to interview lawyers to get a good one. Then you have to participate in your defense so that he can have everything that he needs to put on a dynamite case.

If he’s done everything he can and you’ve done everything you can, your chances of getting “Not Guilty” are greatly improved. Some people think that everyone loses certain kinds of cases like DWI or possession of marijuana or theft cases. If you were charged you are going to be convicted and that is just not so. If you want to get a “Not Guilty” you have to go to trial, because if you plead guilty you’re guilty.

Here we’re talking about a number of things. One is fighting for yourself, doing it effectively with council, having the nerve when you come to court to actually have a trial or come up with a set of facts which would force the government to dismiss the case. That’s how you get a “Not Guilty.”

Some people may think, “Oh my case is easy,” or, “My case is straight forward,” or, “This is my first offence,” or, “This is a misunderstanding,” and they believe because of that somehow it’s going to result in a “Not Guilty” just because they showed up. That is unreasonable. I’ll even call it a dumb decision, because the government wouldn’t have gone to the effort to charge you if they were just going to drop it.

They wouldn’t have gone through the effort and they don’t want to drop a case that they started simply because you think it was a misunderstanding. If you think it’s an easy case, don’t assume it’s going to get dismissed. You have to fight for yourself. Many times people will say, “Oh my case is fairly easy because …” Then they’ll give me a set of facts which would make it easy and my thought is, “Well if it’s easy good for you. We can use that and win.”

It’s much easier to win then if you had a hard set of facts, but a good lawyer will use good set of facts or a bad set of facts to get you a great result and it won’t just go away because you wish it. I guess my advice would be, “If you want a Not Guilty, fight as if it was really important,” and that way you’ll make sure and get across that Not Guilty line.

Normally a person has the right not to be interfered with in their person, so the police if they stop you it’s considered to be improper for them to just stop you and then search you. However, there are exceptions to that rule, and one of those exceptions to the rule would be that you committed a crime in the officer’s presence and he saw you.

If, for example, the officer saw in front of your car a bag of marijuana, and it’s in plain sight or from a distance he saw you smoking and could smell the strong odor of marijuana, those are offences which occurred in the officer’s presence and he doesn’t need a warrant for that.

Let’s consider the other searches that are not that type, where a crime wasn’t committed in their presence and they search you anyway. Maybe they get your wallet and look inside, or maybe they open your glove box or your trunk and they never had permission and no good reason to get in there.

The first thing that’s going to happen in court is the officer is going to try to, after the fact, come up with a good reason to justify his warrantless search and if you can show that he didn’t have a good reason at the time you win the case. Whatever he seized, whatever evidence he found can be excluded, and many times that results in winning the case.

I represented one client who came up on the porch of a house and said, “I smell marijuana,” and he went ahead and a person who was on the porch without being excused just went inside the house. The officer took that as an opportunity to go inside the house.

Now, mind you, he hadn’t seen this person commit an offence on the porch, he had just smelt marijuana, and then he saw the person leave so he went into the house. When he was in there he started asking questions and sort of browbeating a person and got the person to say, “There was a place in the house where marijuana could be found,” and the officer did find marijuana.

We got that case dismissed because the officer entered the house without being given permission and without having seen a crime being committed in his presence and he certainly didn’t have a warrant. It was something that he just came upon, so you can use those things to get evidence excluded and many times you can win the case that way.

That one is definitely going to take a skilled attorney to be able to do it because those exceptions are not super obvious. You need a person who knows the law and knows what the police did and be able to prove to the court that what the police did was not one of those exceptions for a warrantless search and that’s how you take advantage of a warrantless search.