Knowing the law, knowing the court procedures and knowing the proper way to channel and start preparing defenses is extremely important, so if someone’s arrested for a criminal charge, they need to immediately get in touch with an experienced and hardworking aggressive defense attorney. Choosing the right attorney is extremely important.
There are hundreds of attorneys out there who claim to be experienced or experts in certain areas of law, let alone within the criminal defense area. It’s important to choose an attorney who stays up to date about changes in the law, new legislations, new sentencing guidelines, new rulings involving evidence and sentencing, and other alternatives to the way in which criminal cases can be prosecuted. It’s important that when the arrested person or their loved ones are talking with a lawyer, they choose someone who is on top of all of these different issues and involved in all of these different areas.
There could be such a wide variety as well in terms of pricing that it’s important that a person not simply price shop because like anything in life that it’s unfortunate that it holds through when you’re talking about criminal charges that can affect a person’s life forever that you still get what you pay for, generally. So, be very careful about trying to be too price sensitive, ask a lot of questions, a person should make sure that they choose the right attorney, not just any attorney.
Additionally, the way the criminal justice system is set up, because of the heavy volume of cases and the heavy volume of people represented by the public defender’s office, it’s rare that a public defender will stay with their case from start to finish, usually there are public defenders that handle the first appearances, otherwise known as the arraignment and then the case is handed off to another public defender and so on and so forth throughout the process.
The problem with that is there’s never any real investment, meaning full knowledge and ownership of a case and the person’s situation, by the attorney.
It’s never a good idea to represent yourself. There are too many intricacies in the rules of evidence, of changing laws and the way to properly defend a case to have a person, even if they have legal experience, to represent themselves. Furthermore, any communications with prosecutors, investigators, statements in court is there made by the actual defendant, they will be used, twisted and manipulated by those prosecuting the person to benefit them as much as possible to ensure conviction.
If you have the right private lawyer with the right type of experience and knowledge, you can prevent those types of mistakes from really handicapping the defense of the person. You want someone who has full knowledge and experience of the system, the process, the law, and how to properly and aggressively defend you right from the beginning.
Things like bail, defenses that need to be prepared, the proper procedures and way in which to guide the defense through the process in order to get the best result, which hopefully and ultimately from the outset, should be a way in which to get the charges dismissed and proper police conduct that could take place. All of those things need to be examined right from the get go, so it’s important to get an aggressive, thorough and experienced private defense attorney, if possible, to get on board right away.
Miranda was developed by the U.S. Supreme Court to protect people who were being questioned by police in a custodial interrogation setting such that those statements that the person may make or provide the police could not be used in court. It has no effect other than protecting against those statements. So, if a police officer makes an arrest and they never question the arrestee, Miranda is not even required and may times, police officers won’t Mirandize them because it’s only required when the person who has been arrested is going to be questioned.
The legal issue becomes whether or not the person was truly in a custodial interrogation before being either told or formally placed in handcuffs to acknowledge that, therefore, they are being formally placed under arrest.
For instance, if a person is being pulled over for a traffic citation, and they are brought out of the car and investigated for something else and the officer starts asking questions about this other issue. At that point in time, the question might be whether or not Miranda should have been required, because they are essentially in custody. They wouldn’t be able to simply turn around and tell the officer they are going to leave and then you need to look at whether or not they are being asked any questions.
The same would be true when someone goes to a police department to speak with police. How much do the police know at that point and is the person in custody, meaning are they free to leave or not on their own and are they then being questioned by police? So, Miranda and the cases that follow Miranda does not stand for the proposition that a failure to advise the person of your Miranda rights causes a case to be dismissed.
It may have an effect upon statements that, maybe, were obtained by police and whether or not those statements are admissible in court and those statements may have led to additional evidence and if that’s the case and initial statement gets thrown out, the additional evidence that is recovered could be what we call fruit of the poisonous tree, and that might get thrown out too. Whether or not the case ultimately gets dismissed depends on the facts of the case and what other evidence may still exist despite the exclusion of that other evidence.
Additionally, there are circumstances where those statements led to the recovery of other evidence and if there is a Miranda violation. That would arguably be fruit of the poisonous tree, statements get thrown out as does the additional evidence.
There are very recent cases that were handed down that talk about coercion in the context of Miranda and even though there were Miranda waivers given, the question was whether the statements were voluntary and it’s important that an aggressive and experienced defense attorney actually examines the way in which the custodial interrogation took place, even in the face of proper Miranda warnings being given.
If there is extensive coercion by the police and fabrication of facts in order to coerce a confession, that could cause statements to get thrown out and excluded, so this is a very interesting and constantly changing area of law where we’re really trying to seek protection from improper police conduct and it is a misconduct by police, takes place all the time, and it’s a matter of having an aggressive that digs through recordings and notes and other forms of discovery to look for those things.
A good criminal defense attorney is versed in all of those things, but it’s important that the person do their diligence in hiring a lawyer that really tries to continue to stay educated in that particular area and has good experience in that area. That’s the biggest thing that you can do right from the get go, because an experienced and knowledgeable attorney, a criminal defense will meet with the client and start preparing not only just defenses but also mitigation to represent, if you will, the image of the defendant.
When a person is arrested or a case is brought to the district attorney’s office, a city attorney’s office, or U.S. attorney, it is a snapshot of an event. All it is, is a presentation to a prosecuting agency as to who this person is, and it’s being presented by a detective. In reality, it’s a snapshot of an event and a one-sided presentation by a law enforcement agency.
A good attorney will not only prepare for the legal issues that they are going to be confronted with early on in the process, like bail, the beginning of preparing defenses, and examination of evidence, and the preparation of attacking that evidence, but they will also start presenting and creating the whole picture as to who this defendant really is.
That’s important because there are opportunities long before court to start shaping not only the defense, but the defendant, and presenting that information to prosecutors so that they have that in mind when they are determining what type of charges to file, whether it’s a felony or a misdemeanor, and what thought processes might be available for alternative forms of dealing with the case. This might include something called an office hearing, deferred entry of judgment, or diversion.
Various types of ways of handling criminal cases that ultimately could lead to “dismissal” without having to go through the formalities of certain evidentiary hearings or having cases heard in court. It’s very important that a person hire a lawyer who is not only familiar with how to try cases in front of juries, how to argue those cases to judges, how to manipulate the system to the best result possible for a defendant in the form of a “Not guilty” verdict, but also how to deal with the defenses and shaping the picture of the defendant as a complete picture of his accomplishments and what this person has done over the course of their life.
The attorney should also present anything that may have led to the circumstance that the defendant is in right now in order to try to shape a dismissal through negotiations, so the most important thing is getting an experienced attorney on board right away.
It’s important that the attorney look not just at the police reports but also dig into things like notes from police officers, radio transmissions, recordings from the scene, recordings from the officer if they had a recording device on their person, and police video recordings from the patrol vehicles. It’s important that the attorney look at all of those things because if there is no search warrant, the officers have to have probable cause to conduct a search unless there is also consent from the person which is also questionable, especially in the face of a lack of a recording.
A good lawyer will know how to examine each of those potential avenues to see whether or not there truly was consent, whether the consent can be disproved and whether or not the officers truly had probable cause to conduct a search. There are cases within the State of California and the Federal District that lay down specific guidelines and rules that prevent police officers from simply willy-nilly conducting searches whenever they want. They cannot do that. Racial profiling takes place all the time.
I have several cases going on right now that involve racial profiling and it’s important that the lawyers know how to dig through the evidence to show that there is racial profiling going on, that there is no escalating probable cause for the search, that there was no consent despite what’s represented in a police report and to really attack these things to stop excessive police misconduct.
It is absolutely important to be respectful to law enforcement, they are out there to protect the public and to make it safe. By the same token, it is also extremely important if you were being questioned by a police officer that you assert your right to remain silent and be respectful and simply tell a police officer with all due respect, “Officer, I have no problem answering any questions but I feel more comfortable if I have my lawyer with me and leave it at that.”
You’re doing nothing wrong by asserting your right to have an attorney with you and if a police officer says, “Well, if that’s the case, we’re simply going to make an arrest” or “Now is your chance to come clean,” let them do whatever they need to do but there is really no reason to provide any further information, especially if you think they may be investigating something that you have some knowledge about, even if you are innocent or think you’re an innocent party involved in something.
You never know what the angle of law enforcement is and you’re simply better off asserting your right to remain silent and respectfully telling a police officer that you would like to have an attorney present and you prefer not to make any statements.
Whether it’s a minor charge or a major charge, it’s always more important to attempt to defend yourself and to do so with an experienced attorney. This isn’t a question of morally right and wrong, it’s simply a matter of how our world and our society works. It can have immigration consequences, employment consequences, and other consequences for things far beyond simply, “Am I going to jail or not?” Even if you avoid jail, that doesn’t mean you’ve now avoided future problems. It’s extremely important to take criminal convictions and criminal charges seriously and hire the right lawyer.
As long as there is not a third party that’s present that breaks that privilege, I have to hold that privilege sacred. It’s important that the lawyer know everything about the case and about the client in order to properly protect and defend the person because you never know what law enforcement knows or may discover later on, so for me, to know everything about my client is extremely important so that I can accurately and properly defend them.
There are alternative sentencing options that involve drug treatment that can be available, there are new sentencing options such as what’s called a split sentence where a person serves time in county jail and is then placed on county probation or parole, and there are alternatives such as deferred entry of judgment and diversion. There are drug treatment programs that give defendants custody credit while they are in a rehab.
There are so many options in drug cases that it’s important when someone is charged with a crime that they hire an experienced and knowledgeable attorney in this area and that needs to be done right away because when the person presents in court, there may be opportunities long before then to start preparing for the mitigation of those charges by showing that this person is already involved in a certain type of program or there has already been a discussion with the prosecutor about the person’s drug abuse or drug treatment or what have you.
Perhaps they have been arrested as a “seller” or for possession for sale when, in fact, what they really are is a drug user and there is a negotiation going on between the attorney and the prosecutors that puts this person in a position to have drug treatments and ultimately a dismissal of charges that can be beneficial. There are also new sentencing guidelines under AB 109, which could prevent a person from serving time in state prison, instead serving time in county jail, which also affords them the opportunity for potentially a split sentence.
Having a drug arrest, it’s extremely important to hire the right attorney early on, someone who is familiar with all of these things, let alone fighting the legalities of the case, things like illegal search and seizure, improper police conduct and things of that nature. It’s important to begin your defense right away on all of these fronts to start pushing for a dismissal.