Fear being arrested?
Perhaps you have heard that the police are talking about
you to others. They are asking questions. Criminal charges
may be coming.
Should you talk to an experienced criminal defense
lawyer? YES!
Now is the best time to talk to a lawyer—this
is exactly when you have your best and possibly last
chance of staying ahead of the curve.
The way things work is actually reflected in the TV
Law and Order mantra:
"The criminal justice system is comprised of two
separate, but equally important groups: the police,
who investigate the crimes, and the District Attorney,
who prosecutes the offenders."
First, the police suspect you have committed a crime
and they investigate. At this time you are a "suspect."
The police will merely cite you, asking you to come
to court, or arrest you and take you in for booking
and jail on the spot.
The D.A. files charges, not the police. In a sense,
the police work for the D.A. The D.A. is the decision-maker.
Unfortunately, the police usually try to give the D.A.
what they think the D.A. wants to prove a case.
Only after the D.A. does file charges do you become
a "defendant," reportable to and responsible
to the Superior Court.
One of the problems with many criminal cases is that
the law enforcement officers are not professional detectives
and their investigations are not conducted with the
goal of uncovering the complete truth. Most cops feel
it is their "job" to find evidence to establish
guilt, not evidence to support innocence.
Accordingly, almost all police reports do not tell
the whole story.
Police reports provide any incriminating information
that points toward guilt. The cops basically "guess"
at the right booking charges. They "guess"
because police are not lawyers and the charges they
make are only the ones they believe should be made.
Now the D.A.'s office has a file on you. What then?
A deputy D.A. will be assigned to review cases such
as yours and make the preliminary charging decisions
after reviewing witness statements and other evidence.
The D.A.'s office will want to be reasonably sure that
they can obtain a conviction based on the evidence before
them.
Having said that, the D.A. will often err on the side
of caution by over-charging. "Trumped up"
charges can always later be amended or dismissed if
evidence and the law requires. Meanwhile, "over-charging"
provides the D.A.'s office with a bargaining chip to
negotiate with defense counsel.
What can be done at this stage?
This is the time for your lawyer to "help"
the deputy D.A. assigned to the case understand your
point of view and know your side of the story. It is
usually far easier to assist a decision maker make a
decision than it is to later try to get him to change
that decision.
Do not let the prosecutor assume the worst; do not
let the police report control events. Some of what a
good lawyer can help you includes:
- Providing relevant law; D.A.'s are busy people and
do not have the time to research the law: sometimes
they do make mistakes in charging.
- Discovery of facts demonstrating innocence not included
in the police report—your side of the story.
- Providing your personal background: D.A.'s are influenced
by a defendant's background, including education, family,
and parenting skills.
After your lawyer has assisted the D.A. in understanding
the facts of your case, it is possible to request that:
1) No charges be filed,
2) Some charges be dropped.
3) Existing charges get reduced, such as a felony to
misdemeanor.
Your lawyer should make sure that your best "defendant
profile" is put before the decision maker, as soon
as possible.
The sooner you get a lawyer on your side in a criminal
matter the better your odds, whether you are guilty,
innocent, or a little bit of both.
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