You’ve found a lawyer that you like. He or she seems incredibly intelligent and knows the law backwards and forwards. Now you need to decide on one thing: How can I utilize this person’s skills to defend me on a criminal charge?
Understanding both your role as a client and the attorney’s role as your lawyer is necessary in order to present the best defense possible on a criminal charge.
Your Attorney’s Job: Teaching, Negotiating, and Litigating.
People unfamiliar with lawyers might be surprised to find that the majority of time lawyers spend with their clients is spent teaching. The mark of a good lawyer is the ability to explain even complex legal arguments in a way that you understand. Anyone who faces a criminal charge must understand what the elements of the crime are and what evidence the Prosecution has to support those elements.
Your lawyer needs to be a good negotiator. It is a common practice for Prosecutors to offer a less serious charge or a favorable sentencing recommendation to a Defendant in cases where the evidence is weak. In certain cases, a prosecutor may offer a lesser charge to someone with no criminal background. Negotiating is not a one time, winner takes all, event; rather it is a continuous activity until the case resolves -this means all the way up to trial and sometimes even in the middle of trial.
Your lawyer needs to be a good Litigator. In the context of a Jury trial, the need for a good litigator is obvious. He or she will need similar skills prior to trial, since many criminal cases have legal questions that need to be answered by a Judge. For example, will a particular statement be allowed into evidence? The process of asking the Judge for an answer is called a Motion Hearing. The outcome of a Motion Hearing can be critical to your case. Some Motions, e.g. a Probable Cause Motion, can determine if your case gets dismissed before it even reaches trial.
The Defendant’s Job
You are the one that has to live with the consequences of your decisions, so your job is to understand what your choice are and the ramifications of those choices.
In order to understand your choices, you need to ask questions. Never feel shy about asking questions, it’s your attorney’s job to make sure you understand everything. A good Lawyer will be able to answer the majority of your questions up front; probably when they explain your options to you initially. It’s easy to become over loaded with information during your first or second meeting, so don’t be afraid to write your questions down ahead of time.
Generally speaking, there are four choices in any criminal case: First, pleading guilty to something. Second, pursuing some form of alternative resolution. Third, whether or not to file Motions. Fourth, whether or not to go to trial.
Pleading guilty can mean several things. You could plead guilty to the charge as is. The only real issue is whether you and the prosecutor can agree on a sentence or not. If the Prosecutor has offered a lesser crime, you could plead guilty to the amended charge. This new crime may, or may not, be something you are actually guilty of – but since the consequences are less severe than the original crime charged, it might be agreeable to both sides. You could plead guilty using an “Alford” plea. This is where you state up front that you do not believe you are guilty but you are going to plead guilty to take advantage of the Prosecutor’s sentencing recommendation. In an Alford Plea, you must also agree that there is a substantial likelihood that a Judge or Jury would find you guilty if the case went to trial.
In less serious criminal cases, there may be alternatives to either Pleading Guilty or Going to trial. For example, in some misdemeanors, the law allows a “Compromise of Misdemeanor” where the Defendant and the Victim agree to settle the matter between themselves. You can often see this in Third Degree Theft cases such as shoplifting. The shoplifter agrees to compensate the store owner and the store owner agrees that the criminal case can be dropped. There are other examples of this such as a Pre-Trial Diversion Agreement. In a PTDA, the Defendant agrees to do (or not do) certain things and if he or she complies, then the case is dismissed. Unfortunately, alternative resolutions are not available in every case.
In many criminal cases, there are legal questions that need to be answered by a Judge. The most common questions involve whether or not the Prosecutors can use a piece of evidence against a Defendant. Examples can include: Statements, Test Results, or other Physical Items.
Either Party can ask a Judge to rule on whether or not something will be allowed into evidence. This is generally done at a Motion Hearing. As a Defendant, your job is to understand what’s at stake during the Motion Hearing and whether or not there are any risks in having the hearing. The outcome of a Motion Hearing can range from having no impact on your case all the way to requiring a dismissal of the charges against you.
The final arbiter of justice is the Jury trial. Whether or not going through trial is worth it in your case is something you have to rely on you lawyer for. The outcome of a trial is easy: you either win or you loose. If you win, then the case is over and you are done with Court. If you loose, Judges tend to give a little more jail and a little more in fines over what you would have gotten if you had simply plead guilty. Whether a Judge would do that in any particular case depends on how things went at trial. If you had good arguments but the Jury found you guilty anyway, a Judge can take that into account when pronouncing sentence. I have certainly had cases where we went to trial and lost, but my client ended up with a better sentence than he would have received had he pled guilty up front.
Talking with an experienced, aggressive lawyer can remove an incredible amount of stress. It can also create a problem: The temptation to let the “professional” handle your case. Don’t fall into this trap. No matter how smart or well educated your attorney is, he or she will not be able to get you the resolution you want if they don’t know what it is. Your lawyer will be counting on you to keep them informed of your needs and desires as much as you will be counting on your lawyer for good advice.