Every defense attorney should know that one of the best possible defenses
to a criminal charge or conviction is controlling the message, primarily
the message told by the person being investigated for a crime.
One of the most common reasons that people are convicted is simply because
they do not shut up. We have all heard stories where a person might have
gotten away with committing a crime had that person simply chosen not
to talk about the events leading to the crime.
Are You the Best Witness Against Yourself?
One of the first things any seasoned criminal defense attorney will ask
a potential client is whether or not the story has been told. Most good
criminal defense attorneys do not care whether or not a client is guilty,
but those same good attorneys do care whether or not a client has talked
about anything associated with the crime.
In short, it is much easier to get a conviction if the person has given
a statement. Generally speaking, at the point when a suspect is being
questioned about the commission of a crime, law enforcement already has
collected evidence and has a good idea of who are the primary suspects.
At that point, the suspect is at a distinct disadvantage.
In a drug conspiracy case, cops know where the drugs were located, the
person the drugs were sold to and where the drugs came from. When later
questioning potential suspect about his role in a drug conspiracy, law
enforcement will immediately know whether the suspect is lying based upon
whether the responses given match the physical evidence.
When questioning a suspect about the drug conspiracy, investigators will
use personal names of people involved to allude to the fact that other
members have already confessed. They will mention the weights of drugs
involved and any other information to sell the illusion that they know
all of the main players in the conspiracy and they know how all the moving
In a sexual assault case, law enforcement knows who the victim is, whether
there are witnesses who can corroborate the opportunity for an assault
and whether the defendant was actually with the victim. This is in addition
to physical evidence such as injuries, semen and blood.
When questioning a suspect about a sexual assault case, investigators will
frequently attempt to befriend the suspect, dropping details about the
assault that only the suspect might know while tricking the suspect into
believing the investigator is friendly while selling the idea that the
entire sexual incident was a “misunderstanding.”
Exercise Your Right to Remain Silent
Whether the case is a drug case, a sexual assault case, a murder case or
simple theft case, one of the best defenses for a potential suspect is
to simply shut up. Aside from the constitutional rights afforded to all
United States citizens, everybody has the right to simply refuse to answer
any questions of law enforcement. When in custody or under arrest, a person
has the rights guaranteed by Miranda which include the right to remain
silent and the right to an attorney. When a person is formally charged,
a person has a separate but similar right to an attorney automatically.
Those three separate ideas provide a strong framework for a defense long
before a cop shows up to speak with a potential suspect.
Don’t Wait for the Arrest to Hire a Defense Lawyer
At the Berry Law Firm, clients frequently hire us once there is a fear
that a legal investigation is occurring—before an investigation
is completed and long before an arrest has been made. Hiring an attorney
early helps ensure that all of the rights afforded to suspects are asserted.
After being hired, a good criminal defense attorney will assess whether
it is wise to alert law enforcement that a potential suspect has hired
an attorney. Sometimes the best defense is simply advising your client
to remain silent in the event he or she is contacted by law enforcement.
Other times, a client is best served by having an attorney contact the
law enforcement agency investigating the alleged crime and informing the
relevant parties that the client is represented and in the event an arrest
is going to occur, an attorney can sometimes help a client self-report
to avoid the hassle and embarrassment of having cops come to a place of
employment or home.
What to Say to the Cops
The attorneys in our office frequently advise clients to simply tell law
enforcement any one of the following:
- “I want to talk to my attorney.”
- “I have an attorney, and he told me not to speak with you.”
- “I will not say anything until I speak with my attorney.”
Any one of those statements—or a combination of those statements—
is sufficient to make it clear that no questions should be asked.
If an arrest has been made, a defendant can and should always assert his
right to silence and an attorney under the Miranda protections.
The rights that are afforded to a person in custody and under questioning
are often referred to as Miranda warnings, named after a famous U.S. Supreme
Court case, Miranda v. Arizona, 384 U.S. 436 (1966). In that case, the
Supreme Court held that law enforcement officers must warn people of certain
rights before questioning a person who is in custody.
According to Miranda, law enforcement must advise a person that:
- He or she has the right to remain silent,
- Anything the person says can be used against the person in court,
- The person has a right to an attorney, and
- If the person cannot afford a lawyer, one will be provided at public expense.
What If You Already Talked to the Cops?
If a statement has already been given, a good criminal defense attorney
will ensure that no further statements are provided by the suspect. In
addition, an attorney should independently investigate any corroborating
facts surrounding the statement to determine credibility and whether the
statement can be proven up with corroborating evidence. Finally, an attorney
will also examine the facts surrounding the statement to determine whether
the statement given was voluntary or in violation of Miranda. Involuntary
statements are those that are elicited by coercion, improper promises
or threats of harm. If a statement is involuntary or in violation of the
rights afforded under Miranda, a separate hearing must be held to determine
whether those statements can be used as substantive evidence during the
prosecutor’s case in court.
The Most Important Thing to Do in a Police Encounter
The most important thing a person can do if approached by law enforcement
is simply listen to what is being asked and then assert a right to remain
silent. If a prosecutor does not have a defendant’s statement or
confession of a crime, the odds of convicting a defendant become much
If you or a loved one has been questioned by law enforcement about a crime,
contact one of the attorneys at the Berry Law Firm to help protect your
rights or the rights of a loved one.