WHAT TO DO IF CHARGED WITH A CRIME

If you have a heart attack, the first hour -- the "golden hour" -- can make all the difference between whether you survive and recover or whether you suffer permanent injury or death. In the same way, when you are charged with a crime, there are very important things you can do right away that will make a very significant difference in what happens to you.

l    Do not talk to the police, except to identify yourself. To see an example of what can go wrong if you talk to the police, WATCH THIS VIDEO:


Notice how the guy"CONFESSES" to the crime of murder.

He thinks they are talking about shoplifting a can of tuna.

"I SHOT THE CLERK" he says! Later, the policeman testifies in court that he confessed to murder. He talks freely, because he thinks that stealing a can of tuna fish is no big deal.

There are many honest, hard-working police officers who are heros and will risk their lives for us. But a few bad apples ruin the barrel. There are enough bad police officers that it spoils things for everyone else.

First, the worst problem is that the police officer may "remember" things the way he or she wants to remember them. So it is not what you say that hurts you so much as what the police officer remembers you saying when he or she testifies 4 months or a year later. You might not say anything harmful. But the police officer might testify that you said something harmful. You might be sitting there with your mouth open, unable to believe your ears.

Many people describe how they want to stand up and shout "I NEVER SAID THAT!" but you are not allowed to interrupt. And people usually believe the police. They expect the defendant to lie. You've been accused.

Second, no matter how smart you think you are, people will tend to babble in the nervous "heat of the moment." You may blurt out all kinds of things that you would never say under normal conditions. You may not even remember later what you were babbling about at the time. It happens to everyone. The pressure, nervousness, confusion, and (negative) excitement affects your mind.

l    Make sure you understand what you are being charged with. You did "something" that day. We all did "something" that day. I did something. The judge did something. The prosecutor did something.

So you cannot even begin to think about "Did I do it?" until you know what "IT" is -- what they are charging you with, exactly. You may "feel" guilty. But yet you could be innocent of what you are being charged with. Don't jump to conclusions.

You need to know precisely what the charges are in order to know whether you did that or not (something else). Even you do not know if you are innocent or guilty until you completely understand the charges, exactly.

If the law involved is based on 5 actions or circumstances ("elements"), but only 4 out of 5 are true, then you did not commit any crime. All 5 "elements" of the crime must all be true, otherwise no crime occurred. It is essential to know precisely what the charges are and what they are not.

l    Make sure you know WHEN the supposed crime allegedly occurred. Don't jump to conclusions. Then immediately try to figure out what you were doing at that time and if you can remember anyone who can testify about where you were and what you were doing. DON'T WAIT. Nobody will remember 5 months later. You have to act fast. I can't tell you how many clients I have had who are sure someone is going to testify in their favor, and are shocked to hear "I don't remember" instead. Don't imagine you can wait 6 months to a year, and then hope to find someone who will remember what happened at 2:30 PM on Friday, last March 15.

l    Go back to the location and take photographs. Better yet, bring a friend or relative who knows absolutely nothing about the case to take the photographs for you. You may need a witness to 'sponsor' the photographs into evidence, and you don't want to have anyone who can be cross-examined.

I had a client who was shopping outside the store, because there was a special, huge display of plants for sale in the parking lot and other items outside. Four months later, the security guard would not admit that my client was shopping among the products displayed outside, simply because it was four months ago and the displays change all the time. It would have helped to have photographs immediately from the same week when the incident occurred.

l    Do not tell your family, spouse, girlfriend -- anyone -- anything damaging. If you admit anything to your closest friend, your sister, your boyfriend, your girlfriend, your parents, even sometimes your husband or wife, they can be called to testify against you. If you admit something to anyone other than an attorney, it is not confidential or privileged. Your admission can be used against you in court. Usually the prosecution would force the other person to testify. They might not have any choice in the matter.

Note that if you talk to your attorney plus your sister or brother, boyfriend or girlfriend, nothing you say is privileged. There must be no one else in the conversation but just you and your attorney. The presence of any other person in the conversation destroys the privilege.

When I worked for political attorney Larry Klayman, a deposition of (I think it was Lanny Davis or Paul Begala) was interrupted to get a decision from the judge. Immediately after the deposition resumed, Larry Klayman started drilling the witness about whether he took a taxi cab and whether they talked about the case in the taxi cab ride -- with the taxi driver able to hear. He wanted to prove that the attorney-client privileged had been 'waived' by the presence of the taxi cab driver during the conversation!

l    If there were other people involved in the incident, be careful about talking to them. People often get in trouble by what they say and do after the fact. If the crime is very serious, the police could tap phones, etc. They could also have cut a deal with one of the other people.

l    Immediately write down everything you can remember about what happened. You may need to get away by yourself so you can think clearly. If you are not good at writing, get a tape recorder and let the tape run. Try to remember every detail of what you were doing, especially before you encountered the police officer(s). Try to remember everything that everyone said. Record what you said, what the police officer said, what everyone else in the area said.

Start this writing or tape recording with the statement: "THIS IS A REPORT TO MY ATTORNEY AND IS PRIVILEGED AND CONFIDENTIAL UNDER THE ATTORNEY-CLIENT PRIVILEGE."

Still, obviously, you must hide this and make sure that no one sees it or finds it. You cannot show it to friends or family, because this could risk losing the attorney-client privilege.

If you think that there is anything very damaging, you can save this for your attorney and not write down what you did or what you said. It is most important to remember what the police officer did.

I had a friend who was stopped by the police and was charged (falsely) with some very serious alleged crimes. He was not a lawyer and did not have any preparation. But he had the common sense to write notes of every detail. While he was sitting in the police station, chained to the desk, he was writing down notes.

Taking notes saved him and his entire future. He wrote down that the police officer ordered him to turn off the engine of his car. He did not know why this mattered. But it did. It was very important. He wrote down that the police officer ordered him to put his hands on the wheel. Again, he did not know why this would matter. But it was extremely important. These details meant that he was formally in custody, changing his legal rights. Although he was not free to leave, the police officer failed to read him his Miranda rights and that one detail changed his life.

l    Next immediately try to think of every possible witness. Think even about strangers who might have been in the area whom you don't know. Try to find who they are (maybe a friend of someone you know). For example, go back to the place or places. Is the location visible from a store across the street, from a bus that goes on a route near there, from a parking attendant, or from upstairs apartments that overlook the area.

Note: You should probably not approach these witnesses yourself. You should probably have your attorney do it. You might scare them. It might affect how they 'remember" what happened. For example, if they are asked to identify you later in court, they might remember you from the time you talked to you instead of remembering you from the original incident.

l    If you already know any of the witnesses as your own friends or contacts, get a written statement from each of them, hopefully signed before a Notary Public. Do not wait for them to develop a motive hostile to you, or to be pressured by the police or even blackmailed. Do not wait for them to forget. Immediately get a signed statement from them in writing while they are still on yoru side. If you thin kthat any possible witnesses are hostile to you, then leave it to your lawyer to talk to them, but write down for your lawyer why you think they are hostile.

l    Find a good lawyer. The sooner you get started on mounting a defense, while memories are still fresh, and before evidence becomes hard to find, the better.

These days, surveillance video can be very important. If video might be helpful to your case, you need to request it right away. Often stores and facilities only keep video for (approximately) 30 days. If you don't request the security camera footage right away, it can be gone forever. Of course that might be good or bad. But if you are being charged with a crime, they have probably preserved only the bad parts of the video and will often erase the good parts helpful to you (exculpatory).

l    If you were ever charged or convicted of a crime before, try to get all the information about this you can for your lawyer. Do not rely on your memory. You may need to go pull copies of records from the court wherever this happened. Don't tell anyone about this other than your lawyer. But don't just count on your ability to remember, either.

l    Be careful to save and give to your lawyer a copy of any tickets, summons, indictment or document charging you with a crime. Your lawyer will need to see the exact statute number of what you are charged with. It is not precise enough to know the general common name for the crime you are charged with. Your attorney will want to see the exact statute you are charged with. (Note that sometimes the government makes mistakes, like they will charge you with one crime by name but write down a different (wrong) statute. So this is very important.)

You would be surprised how many prospective clients I have talked to who have lost their paperwork and don't really know what exactly they were charged with or when their next court date is supposed to be. Remember that court dates can be changed for a variety of reasons.

l    Be very, very careful that you know exactly what court dates are coming up, so that you don't miss any court hearings. Call the Clerk's office if you are unsure or confused (due to changes). Remember that an attorney cannot take your case if he has a scheduling conflict and has to be somewhere else that day. So when you talk to potential lawyers, you have to know what court dates the attorney might have to appear on for you in court.

l    In certain kinds of crimes, the police or prosecutor may try to confiscate money or property that they imagine was involved in a crime. They do have the right if it truly was part of the crime. But the standard of evidence can be very loose and sloppy.

If you have any money that is not the product of a crime, you may need this to pay for a lawyer. You may need to take money that belongs to you and put it somewhere where it cannot be easily found, so that you will be able to pay for your legal defense.

Let me be clear: Money obtained from criminal activity probably does not belong to the person who got it illegally. It can be seized and confiscated by the government. An attorney does not want to be paid with money that came from a crime.

On the other hand, however, prosecutors love to freeze ALL of an accused person's money and assets to frustrate and disrupt a defendant's ability to hire an attorney and mount an effective defense. They sometimes seize all of a person's money to cripple their ability to hire a lawyer. So if you have your own money, that belongs to you, you should make sure it is in a safe place.

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