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Frequently Asked Questions About Criminal Defense

Yes, it’s worth it! You have been charged by a government entity either State or Federal with a lot of resources. They have got full-time prosecutors working on it and if you are going in there without a criminal defense attorney, you’re going to a gunfight without a gun. The laws are fairly complex in criminal cases; the burden of proof can vary. There are evidentiary rules, there are issues around preserving evidence, there are issues around producing witnesses, getting them subpoenaed, and locating evidence and these are all things that a criminal defense attorney can do quite well.

Knowing if you have the right attorney is a comfort issue. The first thing to look for is experience. In Maryland, you can go to the judicial case search site and you can type in the attorney’s name.

Is the attorney asking detailed questions about your case? If they are not doing that, that’s a bad sign. Is the attorney making very simple statements promising you’ll win? That’s a bad idea. Are they are charging you a king’s ransom? That’s sometimes unreasonable. Are they charging you a very small amount? That’s somewhat disturbing as well. These are all odd things you have to watch for when you are talking with a prospective attorney.

Defending yourself when you’re up against a state attorney’s office with a lot of resources, including investigators, experts, and all the law enforcement at their disposal, is a bad idea. On top of everything you have the complexities of the law. You have to be able to deal with the evidentiary rules, you have to able to collect evidence and know where you can use it and can’t. There are a lot of things the state is supposed to provide you. If you don’t know what those are; you won’t know what they are holding back.

There are very respectable public defenders out there, but the problem for them is that they are salaried, they have huge caseloads, they show up and for the most part they follow due process but they can’t take the extra steps that more often than not make a difference as to what the result is going to be.

A public defender doesn’t live and die by their reputation. They don’t want more business. It is squarely in the interest of a private attorney to win and get the best result that we can. Also we have small caseloads. I go to court generally with one, two, maybe three cases in a day as opposed to a public defender who is going in there with a half dozen or more in the morning and afternoon. My court days are two or three times a week, not every day. There’s a lot of time and resources I devote to preparing the defense, not just showing up.

Possibly! First question is at what point was the defendant in custody, and that varies from situation to situation, jurisdictions, and also from judge to judge in how they are going to view it. Once the legal definition of custody is made, then Miranda is triggered, the police must read those rights. If they don’t read it after custody, any statements that the defendant makes are inadmissible at court.

Any evidence that the police or law enforcement discovers as a direct result of those statements is also inadmissible and then the question becomes can the state make its case without those statements or without that evidence. There is a term called “The fruits of a poisonous tree!” It’s the evidence that’s found as a result of statements that are made or any kind of illegal constitutional problem with the state’s case. If the state can’t make its case, then we look at a dismissal.

No, I don’t think so at all. They are what they are. They provide a certain amount of protection for people. I don’t think it’s less relevant at all.

To hear those words, you have to go through trial. As a criminal defense attorney, getting a “not guilty” from a judge or a jury is a great career moment. Ideally, we don’t like to get to that point. We like to have the case resolved without running the risk of trial but eight to nine out of ten cases are able to be disposed of without going to trial. In effect, what we do is we look to get a deal from the state that is better than what we could get a trial.

Generally, there is a warrant requirement at law and then there are numerous exceptions to the warrant requirement. The best way to stop the police from railroading you is to exercise your constitutional rights, specifically to remain silent and to request an attorney.

You should also never ever consent to a search. When someone’s given permission, all those remedies for a bad search are gone. People often thing that they are doing themselves a favor or making the police happy and things will go better if they agree to allow a search. No! Never allow a search! Never consent to a search! If you say no and they do it anyway, it is what it is and we fight it in court.

We have a right against self-incrimination and we have a right to remain silent. People should exercise that. Sadly, a lot of people, while they have the right to remain silent, seem to lack the ability and oftentimes, the state is able to make their case because of what people have said whereas if they had remained silent, they could not have made their case.

The smart move is to remain silent whether you’re guilty or not. Even innocent people get convicted in the American criminal justice system. You start talking to the police and you run the risk of the he-or-she-said. You also run the risk of just plain failures to communicate and the risk of the police lying about what was said. If you don’t say anything, it eliminates all those risks.

It’s a long road from being charged and ending up in jail. The first step is to call an attorney immediately because there are oftentimes very short deadlines in a criminal justice system. There are also issues with evidence. Evidence disappears, evidence gets ruined. There are oftentimes things that need to be done right away to preserve evidence. The videotape is going to be erased in 24 hours, the deadline that needs to be met within a few days. The first thing to avoid jail is to get with a good attorney and then, a lot happens along the way.

There’s a discovery process where the state has certain things they have to do, if they muck that up, that can get the case dismissed. There are motions that can come into play before trial and then there are also deals that can be struck.

In Maryland, we have pretrial diversionary programs, we have what’s called the stet docket, it’s an Old Latin legal term. If sometimes a deal gets struck, sometimes we take it to trial and before jail is on the field, you have to be found guilty but even after a finding of guilt or even after a plea, it’s still discretionary most of the time with the judge. There are a lot of things that can be done to convince the judge that jail isn’t the appropriate disposition in a case.

The only time it makes sense not to fight your case is if the state is offering a deal that is better than you’re going to get if you’re found guilty at trial. You have an absolute right to fight the case. The state has to prove its case beyond a reasonable doubt.

There is an old joke among criminal defense attorneys that just because you did it doesn’t mean you’re guilty. We have a system that forces a state to prove its case because the most important thing is that people that are innocent don’t end up in jail.

It’s important that attorneys fight these criminal defense cases because it keeps the police more honest and it keeps the prosecutors more honest. A lot of times you win a trial. Sometimes a case can look pretty bleak in discovery. We go to trial and witnesses are on the stand and people say and do things that no one knew was coming and no one expects and all of a sudden you get a “not guilty.”

There are several different things! Obviously, the facts of the case; what happened before, during or after the facts that led to the charge. Also personal information, education, work history, family, any prior criminal convictions, it’s important that we know that. While being a good person is not a get out of it completely for free card, it does make a difference as to how aggressive prosecutors may be in the case. It also makes a big difference as to what judges are likely to do.

There are several. One is they talk to the police thinking they can talk their way out of it. It’s very rare that talking to police does anything but make it worse. The second big mistake people make is not calling a lawyer right away and putting it off and as a consequence losing certain opportunities that would have made a difference in the case.

The first difference is a private attorney lives and dies by his professional reputation. We’ve got to win and we’ve got to get good results for us to remain in business and our reputation is everything. Public defenders are salaried individuals, they have certain job responsibilities but they don’t have the time or the resources to do a lot of the extra things that make a difference in the criminal defense.

You’re going to want to know what the fee is and how the fee is structured. You’re going to want to get a sense of what the attorney’s experience is in that particular area of law. A lot of it is just paying attention to what’s being done.

The big thing is if the attorney is asking detailed questions about the case. Is he listening to you? Is he following up with questions that come from those answers? Does the attorney sound knowledgeable? Is the attorney being reasonable with the expectations? You don’t want to feel like you’re talking to a used car salesman. Those are all things to be mindful of when you’re talking to an attorney and the phone is the first step. It’s good to go in and have a sit-down with them. You can’t read a book by its cover but you can certainly judge the book by its cover.

As an attorney, we need to zero in on the events that led to the charge, what transpired prior to it, what happened during it and really dig in deep into those facts and it’s a good idea to ask.

A good attorney will ask the same question three different ways, because sometimes people misunderstand or they are not comfortable with telling us something that they need to tell us. Beyond that, they need to ask not just the facts of the case, but the context of the person’s life: who is this person, what has led them to this particular crisis in their life, what kind of facts are there that we need to mitigate, that could be harmful, and what kind of facts do we need to develop and get evidence to support that will help.

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