It goes without saying that the best result when facing a criminal charge is to get out of it completely. Everyone hopes the whole thing can just go away. That can and does occur sometimes, but only when the lawyer uses an intelligent defense strategy. Before that can happen, however, the whole situation, and every piece of evidence within in, must be carefully examined. This all sounds great, but beyond that, what does it really mean? In this article, we’re going to explore that.
We live in the Information Age. Police body-cam video is in widespread use as we begin 2023, and that’s growing. Soon, it will be largely universal, and that’s good. No matter what, there are 2 sides to every story. Even a routine and polite citizen-police interaction can be perceived differently by either party. Video evidence is neutral. To be sure, video is far from perfect, but it can certainly be beneficial in a criminal case. Sometimes, that can just mean providing a person with the clarity to know that the case against him or her is solid.
That shouldn’t be dismissed out of hand. It would be impossible to count the number of times my team and I have heard one thing from a client, and then seen another on the video. In DUI cases, for example, people will often say things like the officer “said I swerved.” Sometimes, people disagree, genuinely believing that their driving was fine. Later, when watching the police dash-cam video, they’ll see that their driving wasn’t fine, and at least not feel so bad about the traffic stop. Of course, that’s not as good as finding a way to beat the criminal charge, but even merely erasing doubt is a good thing.
How language is used matters. In life, groups of people can be thought of as “less” simply by referring to (and then eventually thinking of them) by using a derogatory term. Here’s a real-life example of how NOT to do that. When I first began practicing law, I watched how older, more experienced lawyers did things. Often, I would see court-appointed attorneys standing next to their clients in a criminal case, referring to him or her as “the defendant.” That immediately struck me as wrong, and de-personalizing.
I decided, the first time I ever heard that, to never refer to any client as “the defendant,” but rather by his or her name name. My team and I have always called our client by name – as Mr. So-and-So or Ms. So-and-So.
Personally, I would never refer to my client as “the defendant.” That term, “the defendant,” is not only anonymous, it almost makes the person sound guilty. It certainly makes him or her sound like someone less important than a Mr. So and So, or a Ms. So and So. A lawyer may not use that term with any intent to dehumanize the client, but it tends to at least de-personalized him or her. I firmly believe that it is extremely important to humanize ever person we represent who is facing a criminal charge.
That’s why my team and I will always refer to our clients as “Mr. Smith” or “Ms. Jones.” Each one is a living, breathing person – someone who has a family, a life, a job, and a place in this world – a place that we, as defense lawyers, must protect.
How we use language directly shapes how we perceive and interact with the world. This is particularly important for anyone who has a criminal charge pending against him or her. Prosecutors handle lots of cases. The simple truth is that there aren’t loads of innocent people arrested for things like indecent exposure, embezzlement, or DUI, who are completely innocent. To be sure, many people deserve a break, but that’s not the point that matters here.
What I’m driving at is that prosecutors can safely assume that most of the files they have on any given day are for people who have NOT been wrongfully charged with an offense. In other words, they largely assume the person named in each file is guilty. Again, that’s not to say that the person doesn’t deserve a break. However, the reality is that the day-to-day experience of prosecutors doesn’t leave them dealing with many cases where the person is completely innocent.
A defense lawyer can never fall into the habit of thinking like that. It’s a trap. It is IMPERATIVE for a lawyer to undertake the defense of every criminal charge by ASSUMING that there is some flaw with the evidence, and that it’s his or her job to keep digging until it’s found. To be sure, the facts are the facts, and one’s perspective won’t change them, but the “most people are guilty” kind of mindset will negatively impact how the lawyer examines the evidence. The lawyer’s job is to carefully scrutinize the evidence – not merely “look it over” to see if anything jumps out.
Even when, as in most cases, there is no catastrophic problem with the evidence big enough to get the whole case tossed out of court, one little thing, or a few little things, can often be used to drive a better outcome. Usually, those little things don’t “jump out” when doing a quick review. This is why the lawyer must carefully and closely examine the evidence that allegedly supports a criminal charge. That’s how things are discovered.
As with everything in life, good work is the key to good results.
In terms of fighting, a lawyer can, of course, “fight” just about everything related to a criminal charge. That tactic, however, is a shortcut to disappointment. There are some (although thankfully, not many) lawyers who are experts at putting on what some call a “dog and pony show.” They run up a bill by going to court and challenging everything under the sun.
Judges and prosecutors, of course, know who they are.
While these characters are very successful at making money, those in the legal community can’t help but feel a bit sorry for anyone who winds up hiring one of them to defend a criminal charge. They may be great at making a lot of noise (and money, in the process), but not at producing successful results
To be sure, Judges and prosecutors respect a lawyer who stands up and fights for his or her client. Neither will be put off by an honest and good-faith challenge to the evidence. That, however, is a lot different than just finding things to challenge in court and wasting everyone’s time, just to run up the tab.
The lawyer’s job, therefore, is to challenge evidence intelligently. Of course, he or she can’t be so spineless as to merely contest those things that are obvious. On the other hand, the lawyer shouldn’t launch some long shot challenge that will waste the client’s money AND the Judge’s patience, either. Instead, the defense attorney should always proceed with a plan, and understand both the benefits of winning a fight, and the costs of losing.
That plan has to be well thought out. What to challenge, and when, can only be known after a truly careful examination of the evidence. Even the most garden-variety criminal (like an aggravated indecent exposure) case is complex, especially when it comes to evidence. That said, in criminal cases, there are several areas that are usually the most fertile ground for making a successful challenge.
For example, in any case involving a DUI or traffic offense, the reason for the traffic stop is key. Did the police have a good reason (reasonable suspicion) to pull someone over? That’s a lot different than them showing up and finding someone passed out behind the wheel after rolling his or her vehicle into a ditch.
In other cases, like those involving drugs, embezzlement, or indecent exposure charges, there are always concerns about privacy expectations, especially as it relates to search and seizure. In addition to those, we also need to examine other important potential issues, like whether or not a person was properly advised of his or her rights before saying anything incriminating, and how evidence was obtained (and, in many cases, analyzed).
What all this means, really, is that a person should hire a lawyer who will fight for him or her, but is not merely some blow-hard “fighter” who only makes a lot of racket and charges a fortune to do that. Ultimately, what matters are results. As I often point out, success in a criminal or DUI case is best measured by what does NOT happen to you.
The best outcome in any case is achieved by following an intelligent defense strategy that includes a plan to fight those things that can be successfully challenged.
No lawyer can do more, and my team and I will never do less.
If you are facing a criminal charge or DUI charge, be a wise consumer and read around. Pay attention to how different lawyers explain the criminal and DUI processes, and how they break down their various approaches to them.
This blog is a great place to start. It is fully searchable and updated weekly with new, original content. As of this writing, there are more than 210 articles in the criminal section, and more than 590 articles in the DUI section. It is the single biggest and best resource for criminal and DUI information that can be found anywhere.
Don’t take my word for it, however – check around for yourself.
Once you’ve done enough reading, start calling around. You can learn a lot by speaking to a live person. All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll even be happy to compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), at either 248-986-9700, or 586-465-1980.