You have found an attorney you like. He or she appears to be very intelligent and knowledgeable about the law. Now you need to decide one thing: How can I use this person’s skills to defend me against criminal charges?
Understanding your role as client and your attorney’s role as your attorney is necessary to provide the best possible defense against criminal charges.
Your Lawyer’s Work: Teaching, Negotiating, and Litigation.
Those who are not familiar with lawyers may be surprised to learn that the majority of a lawyer’s time with clients is spent teaching. The hallmark of a good lawyer is the ability to explain complex legal arguments in a way that you understand. Anyone facing criminal charges must understand what the elements of a crime are and what evidence the prosecution must produce to support them.
Your lawyer needs to be a good negotiator. In cases where the evidence is insufficient, prosecutors often recommend lesser charges or favorable sentencing to the accused. In some cases, prosecutors may bring lesser charges against people with no criminal background. Negotiation is not a one-off, winner-takes-all event; rather, it is an ongoing activity until the case is resolved—which means right up to, and sometimes during, the trial.
Your lawyer needs to be a good litigator. In the context of jury trials, the need for good litigators is evident. He or she needs similar skills before trial, since many criminal cases have legal questions that need to be answered by the judge. For example, are specific statements allowed in evidence? The process of asking the judge for an answer is called a motions hearing. The outcome of the motions hearing may be critical to your case. Some motions, such as probable cause motions, can determine if your case was dismissed before it went to trial.
You are the one who must live with the consequences of your decisions, so your job is to understand what your choices are and the consequences of those choices.
In order to understand your options, you need to ask questions. Never be shy about asking questions, it is your attorney’s job to make sure you understand everything. A good attorney will be able to answer most of your questions up front; probably when they initially explain your options to you. It’s easy to be overwhelmed with information during your first or second meeting, so don’t be afraid to write your questions down ahead of time.
In general, there are four options in any criminal case: First, plead guilty. Second, seek some form of alternative solution. Third, whether to file a motion. Fourth, whether to go to trial.
A guilty plea can mean several things. You can plead guilty as is. The only real question is whether you and the prosecutor can agree on a sentence. You may plead guilty to the amended charge if prosecutors bring a lesser crime. This new crime may or may not be the one you actually committed – but since the consequences are less severe than the original alleged crime, both parties may agree. You can use “Alford” to plead guilty. This is where you pre-state that you do not believe you are guilty but that you will plead guilty to take advantage of the prosecutor’s sentencing recommendation. In the Alford plea, you must also agree that if the case goes to trial, there is a good chance that a judge or jury will find you guilty.
In less serious criminal cases, there may be options other than pleading guilty or going to court. For example, in some misdemeanors, the law allows for a “misdemeanor compromise,” in which the defendant and victim agree to work things out between themselves. You can often see this in third-degree theft cases like shoplifting. The pickpocket agreed to compensate the shop owner, who agreed that the criminal case could be dropped. There are other examples, such as pre-trial transfer agreements. In PTDA, the defendant agrees to do (or not to do) certain things, and if he or she complies, the case is dismissed. Unfortunately, alternative solutions are not available in all cases.
In many criminal cases, judges need to answer legal questions. The most common question concerns whether prosecutors can use evidence against defendants. Examples may include: statements, test results, or other physical items.
Either party can ask a judge to decide whether to allow something into evidence. This is usually done at a motions hearing. As a defendant, it is your job to understand what is at stake during the motions hearing and whether there are any risks in holding a hearing. The outcome of a motion hearing can range from having no effect on your case to asking for the charges against you to be dismissed.
The ultimate arbiter of justice is the jury trial. Whether it is worth going to trial in your case is something you have to rely on your attorney for. The outcome of a trial is simple: win or lose. If you win, then the case is over and your court is over. Judges tend to award a little more jail time and a little more fine if you let go than if you just pleaded guilty. Whether a judge will do so in any particular case depends on the circumstances of the trial. If you have a good argument but the jury finds you guilty anyway, the judge can take that into account when sentencing. I’ve certainly had cases where we went to trial and lost, but my client ended up with a better sentence than he got if he pleaded guilty beforehand.
Talking to an experienced and motivated attorney can take incredible stress away. It also creates a problem: the temptation to let “professionals” handle your case. Don’t fall into this trap. No matter how smart or educated your attorney is, if they don’t know what this is, he or she won’t be able to give you the solution you want. Your lawyer will count on you to make them understand your needs and wishes, just as you count on your lawyer to give you good advice.
To get the most out of your criminal defense attorney, get involved in your own defense. Ask questions, understand your allegations, and prepare yourself to ultimately decide how to resolve your case.
Copyright (c) 2007 The Cahoon LLP. all rights reserved.
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