In order to answer this question, one must understand the process that normally takes place when a person is arrested. Whether domestic violence, a sex crime, a drug investigation, a murder, a white collar crime such as embezzlement, or any other type of criminal charge, the initial arresting officer will usually respond to the crime and then make some sort of arrest. This may not true during white collar crimes or drug investigations that may involve multiple investigations or stings with undercover agents. However, at some point, the case will typically be assigned to a detective or investigating officer who will follow up with additional statements and interviews, and/or other evidentiary issues or circumstances that need to be further investigated.
It’s important that a defense attorney get involved early for the person who was arrested or is being investigated to start preparing for a defense and getting in front of any of those types of follow-up investigations that are going to be conducted by law enforcement. Law enforcement is going to be building a case for the purpose of criminal prosecution. The investigation they conduct is being conducted for that end, with that slant, with that bias, with that purpose to build a prosecution. So any information being provided to law enforcement through interviews or other tangible evidence is going to be looked at and examined in order to see how that can assist their goal. A good criminal defense attorney will be able to shield that type of bias, that type of slant.
We can determine whether something is going to be examined in a helpful way to the client by law enforcement, or simply twisted to be used against the client in which case we would not present it. There are many ways a good criminal defense attorney can help the client early in this phase, as I have done with many, many clients, but it is important to protect the client right at the outset to ensure those protections are in place.
In typical domestic violence cases, a police officer will respond to a 911 call that there’s some sort of familial disturbance or some sort of domestic violence going on. After investigating the case at the scene and gathering statements, the officer will then make an arrest. Subsequent to that, the person who gets arrested, even in minor cases, has now been placed in custody, separated from his or her family, forced to pay a large sum of bail and is now thrown into a system that basically removes them from their household. So it’s important for a reliable, responsible and experienced criminal defense attorney to now step in and start putting some form of comfort back into not only their lives but the entire familial setting.
The attorney can also find out exactly what occurred and make sure that what is being reported by law enforcement is accurate. Law enforcement officers can be placed in a position of having to guess based on information at the scene as to whether or not this is really a domestic violence situation and who the primary aggressor was even in the face of no physical evidence. I’ve had cases where statements have been misrepresented in order to corroborate the justification of who was arrested, so it’s important that the attorney step in to really present a more complete picture of what happened and to bring some reasonableness to this situation. Many domestic violence cases become vertical prosecution type cases where the prosecuting attorney who will handle it in court is on-board right from the beginning, even before the case is filed.
So it’s important to have an attorney that can talk to not only the investigating officer or the detective but also to the district attorney and bring statements and/or evidence that was not initially provided for a more complete picture of what was going. This will allow them to make a more appropriate decision as to whether or not charges should be filed. They are ethically instructed to only file cases they believe they can prove beyond a reasonable doubt. That information may be clouded or not available when the police officers first arrive on the scene, and they make a decision to arrest someone simply because of the highly volatile, emotional state that everyone is in.
When it comes to sex crimes, it is extremely important to have an attorney on-board early. Those types of charges involve vertical prosecution within the DA’s office, and any statements by a victim or witnesses may not necessarily have been fully investigated and obtained at the time of the arrest. An experienced defense attorney may be able to step in with an investigator and gather more information, such as video, audio recordings and witness statements, sometimes even physical evidence, that can better explain whether or not it was a consensual versus non-consensual circumstance, whether alcohol or narcotics were involved by both parties that may have contributed to what ended up becoming a volatile situation.
An experienced defense investigator and defense attorney can put some structure in place and be able to present this full, more complete picture to a prosecutor who is examining the case. The prosecutor will be making a decision whether or not the defendant should have a criminal pending case versus what we refer to as a rejection. This decision can be catastrophic to someone’s personal and professional life. Getting an experienced attorney involved before any statements are made, before any “pretext” phone calls from the victim with law enforcement listening and recording, before any further investigation of the client is extremely important for the protection of the client.
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