10 Things that Your Criminal Defense Attorney Wish You Knew

April 21, 2023 / 9:03 pm

There are many myths and misconceptions about the criminal justice system. The

more a defendant knows about how the system actually works, the better he will

be able to assert his rights and protect his interests.

This list contains information and advice which can help a defendant avoid the common pitfalls and unpleasant surprises that can plague an individual after an arrest.


1. There is no constitutional right to make a phone call from jail.

Criminal defendants often will complain that the police did not honor their “right” to make a phone call. There is no such thing as a constitutional right to make a call immediately after arrest. State laws or administrative rules might require the police, a jail, or a lock-up facility to allow an arrestee to make a call, but the Constitution does not.

2. Phone calls from jail are recorded.

Virtually all police stations record calls, and the prosecution surely will obtain a copy of the recording of the defendant’s call. During this initial phone call, a defendant should not discuss the circumstances leading up to and surrounding his arrest. He should not argue his innocence or try to explain how he ended up in jail. A defendant should simply state the charges against him, if known, where he is being held, and request help in finding a criminal defense attorney.


3. There is no value in arguing the case to the police.

After a defendant is arrested, the police may spend some time questioning him. The point of this interrogation is to gather incriminating information for the prosecutor, and maybe even obtain a confession. The interrogating officer might offer to drop certain charges or promise to obtain a better deal. In general, if the police have sufficient evidence to go forward with the case and obtain a conviction, they wouldn’t be offering a deal. Moreover, the police officer sitting in the interrogation room has no real power to cut a deal or drop the charges. Although the police can make recommendations, the prosecutor determines (a) whether the government will offer a plea bargain and (b) what the terms of that bargain will be. Therefore, when a police detective promises a particular deal, a defendant cannot rely on that promise.

4. The more a defendant talks about his case, the more he puts the outcome at risk.

Perhaps the most common mistake made by criminal defendants is talking about their case. The key to avoiding this mistake is simple in theory, but in reality is often easier said than done: a defendant should not discuss the case with anyone other than his criminal defense attorney. Cellmates may be police plants or willing to turn state’s evidence to get a better deal for themselves. Conversations on jail telephones are monitored and recorded. Jail staff typically read incoming and outgoing inmate mail. Family members and friends will want to know what happened, and a defendant will be tempted to explain why he is not guilty. Resist that temptation. Even seemingly harmless statements made to trusted friends and family members can be used in unexpected ways.


5. The State decides whether to prosecute a case, not the alleged victim.

Many people mistakenly believe that they cannot be prosecuted for criminal acts unless the alleged victim chooses to “press charges.” This is completely untrue. The prosecuting authority, usually the State’s or District Attorney’s Office, makes the decision as to whether or not suspected criminal acts will be prosecuted. Similarly, alleged victims cannot “drop” the charges. Often, the prosecutor will listen to the wishes of victims and their families, but the decision to abandon or move forward with a case lies with the government. In addition, many prosecution offices have strict “no drop” policies with respect to certain crimes, like domestic violence, and will never dismiss a case based on the wishes of the alleged victim.

6. Innocence is not a basis for a motion to dismiss.

Criminal defendants will often request that their case be dismissed because they are innocent of the charges against them. However, a pre-trial motion to dismiss—that is, a formal request to the court to dismiss the charges—must be based on one of a very few, narrowly defined, technical reasons for dismissal (e.g., the time allowed to file charges has expired or the court has no jurisdiction over the case). A claim of innocence is not a valid reason for a dismissal motion. A defendant who did not do what he is accused of doing should plead “not guilty” to the charges and request a trial.

7. Good character generally is irrelevant to the defense at trial.

While character witnesses may be extremely helpful at a bail hearing or a sentencing hearing, they are almost never allowed in criminal trials. Subject to a few limited exceptions, character evidence is generally inadmissible. The issue at a criminal trial is limited to whether a defendant did the specific thing he is accused of doing. Evidence that a defendant is a good person or that his accuser is a bad person generally is irrelevant.


8. A defendant is not allowed to speak to the judge about the facts of the case.

A defendant may want to write a letter to the judge, or speak with the judge about the facts of the case, but this not allowed. It is strictly forbidden to communicate with the judge about a pending case off the record, outside of court. The judge will disregard any letters sent to him or statements made by a defendant professing his innocence. Blurting out facts about himself or the charges against him in court could actually damage a defendant’s case.

9. A plea agreement is not a get-out-of-jail free card.

Most criminal cases are resolved through plea deals, and it is likely that, if arrested, a defendant will be offered a plea deal. Moreover, chances are that a defendant’s best interests will be served by taking the deal. A defendant should be sure, though, that he understands what he is agreeing to and what will be required. A plea deal is not a get-out-of-jail-free card. Often, plea deals come with stiff financial requirements. In addition, a defendant may be subjected to a curfew and travel restriction. Drug testing can also be part of a plea deal. If a defendant thinks he will have trouble complying with the terms of the agreement, he may be better off rejecting the deal and going to trial. Probation violations are easier to prosecute than the crime that was originally charged and the punishment can be harsh.

10. A criminal trial is not a quest for the truth.

Contrary to what many believe, the jurors in a criminal trial are not obligated to collectively piece the evidence together until they arrive at “the truth.” It is not their job to solve the case. Rather, the jurors’ only job is to determine whether the government, as represented by its prosecuting attorney, has met its burden of proving a defendant’s guilt beyond a reasonable doubt. To put it another way: a defendant does not have to prove his innocence; the prosecution must prove the defendant’s guilt. Practically speaking, “beyond a reasonable doubt” means that, after hearing all the evidence, the jurors must be truly and steadfastly convinced that the defendant is guilty of the crime charged.

This is a heavy burden.