People contact criminal defense attorneys when they feel the most important
things in life are on the line. Criminal defense attorneys know that their
clients have placed a great deal of trust in them.
Unfortunately individuals charged with crimes often do things that minimize
attorney’s effectiveness. Below are three things that people do
that can destroy their chance of getting a favorable result.
1. Lie to your attorney and the withhold information.
Most of the time a criminal defense attorney is not out to prove a client’s
innocence, but rather to raise reasonable doubt as to whether the government
can prove its case. While there are cases where the criminal defense attorney
will seek to prove his client’s innocence, most often, the attorney
is more concerned with deconstructing the government’s case than
building a case. The reason is because the government retains the burden
of proving the case beyond a reasonable doubt and that burden never shifts.
If the government cannot prove every element of the case beyond a reasonable
doubt, then a judge or jury must acquit the defendant of the crime charged.
In order to get the best result, the defense attorney must know everything
about the case. This is not just what the prosecution provides in discovery,
but what the defendant knows about the case. The defense attorney was
not there when the alleged crime happened (sometimes neither was the citizen
accused). However, the person charged with a crime has more information
on the background of witnesses, locations, and events that can raise doubt
as to the prosecution’s case.
One of the worst things a person charged with a crime can do is to lie
to his criminal defense attorney. While criminal defense attorneys may
use investigators and comb through witness statements, the client usually
has a great deal of knowledge about the witnesses, locations and the events
which the defense attorney is investigating. When the client either lies
or fails to disclose information to the defense attorney, it can result
in a defense attorney focusing on a defense theory or strategy that will
not work because the theory is built on a premise provided by the client
which is not true.
For example, if a defendant in a criminal case has been charged with sexual
assault and claims he does not know the victim, never met the victim or
never communicated with the victim, the attorney will prepare a defense
assuming those facts. The problem occurs when witness statements, social
media, phone records and text messages prove otherwise. Unless all of
these communications were fabricated the attorney must now consider other
defenses and options.
A good criminal defense attorney can work with both the good and the bad
facts. In every case there are good facts and bad facts.
There are facts that a defense attorney may be able to keep out of evidence
and there are facts that the criminal defense attorney is going to have
to figure out how to deal with at trial. he key is that the criminal defense
knows which facts he is going to have to accept and deal with and which
facts can be used to raise doubt or may be excluded by the court.
The key is that the defense attorney have all of the facts from his client,
both good and bad.
2. Talk about the case to anyone but the attorney.
The attorney/client privilege is essential in guaranteeing a criminal defendant’s
right to a fair trial. Anything that a defendant tells his attorney about
the crime for which he is charged is privileged. This means that the attorney
may not divulge this information. With very few other exceptions, anything
that the criminal accused says to anyone other than his attorney is not
privileged. Furthermore, anything the criminal accused tells anyone else
about what he has told the defense attorney, waives the attorney/client
While not talking about your privileged communication with your lawyer
seems like this is common sense, people love to post on social media.
Unfortunately, people would want to proclaim their innocence to the world
through social media and other electronic communications and do so at
their peril. It's not just that some people go on Facebook or Twitter
to proclaim their innocence or proclaim the alleged victim is a liar,
the problem is these statements usually create threads of multiple communications
in which the defendant makes admissions as to specific facts and sometimes
even reveals trial strategy.
All jail phone calls are recorded. In the past, criminal defendants have
given away their trial strategy while talking to a friend or relative
during a jail call. Prosecutors have access to this information and then
can prepare their case to overcome the reasonable doubt the defense intends
to raise because the prosecutor has been given advance notice. Another
problem that occurs when criminal defendants communicate about their case
with non-attorneys is they create witnesses who may testify against them.
While a criminal defendant may not directly admit to a crime, if he talks
to another person such as a girlfriend, best buddy or relative about the
facts of the case, that person could potentially be used as a witness
to testify against him. This can be problematic when the defense attorney
intends to call that person as a character witness and then learns later
that this witness has information that can do more harm than good.
3. Get into trouble.
One of the worst things a person facing criminal charges can do to sabotage
his case is to obtain new charges or otherwise get into new trouble. If
the conduct is similar to the conduct for which the defendant is charged,
the government may be able to use that evidence at trial for the first
case. Thus the jury will not only hear about the original crime, but the
conduct which may constitute a crime after charges were filed.
The other problem is that most of the time plea agreements revolve around
the condition that the defendant will not commit any more crimes in order
to be eligible to accept the plea agreement. In other words, if the defendant
gets in trouble, it may cost him a favorable plea agreement.
Even if a defendant gets into a type of trouble that does not result in
additional criminal charges, or does not ruin a plea agreement,, the judge
may consider that conduct when sentencing the defendant. While many judges
believe in giving people second chances and understand that we all make
poor decisions from time to time, the judge who deals with a defendant
who was arrested for a serious crime and then committed another crime
will not see the defendant as someone whose criminal actions were an aberration,
but rather in conformity to his character. This is dangerous because the
judge will likely determine that a stiffer punishment is necessary.
Hiring a defense attorney can be one of the best decisions a person charged
with a crime can make. However, a defendant who does not follow his attorney’s
advice and does things to sabotage his case may destroy the value that
his criminal defense attorney brings to the fight.