How to Help Your Criminal Defense Attorney Defend You
We all understand that you hire a defense attorney to help you through a tough situation. It may therefore seem counter-intuitive that you have a duty to help your attorney. However, the direction your case will take is often determined by the steps you take on your own. Whether it is what occurs at arrest or in preparing your case, there is a lot you can do to positively (or negatively) influence your chances of success. Here are the best ways to help us defend you in court:
Don’t Admit Anything to the Police and Don’t Consent to a Search
This should be the cardinal rule of interaction with the police—do not admit to anything illegal and do not consent to a search. It always amazes me the number of cases where there is a confession to a crime or someone consented to a search when they had something illegal on them. By admitting to illegal activity and/or consenting to a search, you are making the job of the police so much easier and our job that much tougher.
I know the police can be very persuasive and may try to convince you that it is in your interests to cooperate—IT IS NOT! If a police officer finds drugs or other illegal items on you, they will charge you with a crime. If you admit to doing something illegal, you will be charged. Only with minor traffic infractions do you have any chance at getting off with just a warning. No matter how good a talker you are, you cannot talk yourself out of criminal charges. By avoiding incriminating statements and searches, you increase the likelihood of us having a strong defense at trial, which can lead to dismissals or favorable plea deals.
Be Respectful to the Police
While you should never admit to a crime or consent to a search, there is nothing preventing you from being respectful and polite to the police officer. Most defendants fail to realize that the prosecutor relies a lot on the police officer’s account of what happened, and a little bit of respectful courtesy goes a long way in helping you out at court.
In traffic cases, this is almost mandatory if you want a reduction to a lesser or no points offense. I have seen cases where a driver with a good record did not get a reduction because they were a jerk to the officer and I have seen bad records get surprising reductions because the officer remembered how polite they were when stopped. When you get pulled over, do not argue with the police officer—you are not going to argue your way out of a ticket. By being polite and leaving the arguing to your attorney, your chances of getting a favorable outcome at court will be much greater.
In criminal cases, your attitude matters almost as much. A defendant who was polite to the police has a much better chance at a beneficial plea deal than someone who treated them horribly. A police officer will not hesitate to let either the prosecutor or a judge know if you made their job difficult. Being respectful without giving away your rights, and avoiding unnecessary confrontation with the police, will help us defend you.
Be Honest With Your Attorney
Being honest with your criminal defense attorney is an absolute must. There is a reason that our conversations are protected by attorney-client privilege: if you are dishonest with your attorney, it seriously hampers their ability to protect and defend you. As my client, if you tell me something in confidence than I cannot reveal it to anyone. Don’t be afraid of telling your attorney whether you committed the crime or not—it won’t make us fight any less hard for you, or lessen our effort to make the government prove their case. Being honest allows us to avoid any surprises when we are talking to the prosecutor or arguing in court, and it allows us to give you the best and fairest assessment of what will likely happen.
Give Your Attorney Any Witness Information As Early As Possible
This one is pretty simple: if you know of any potential witnesses that can help your case, give your criminal defense attorney that information as soon as possible. We will need to talk the witness and discuss their version of events with you. We can then subpoena the witness and prepare their direct examination for trial. All of this takes time. Witness subpoenas alone will take a few weeks to process. The earlier your attorney gets this information, the better prepared both the witness and your attorney will be. Some defendants wait until the last minute to discuss witnesses—by then, it is way too late. Courts, particularly those in Northern Virginia, are extremely hesitant to continue cases on the day of trial absent good cause—and failure to notify your attorney of potential witnesses is not good cause.
Don’t Rely On Discovery Alone
Discovery is a vital part of any criminal case and in some form or another, we conduct it on every case. However, do not rely solely on discovery provided by the government to prepare your case. Nor should you necessarily expect it well in advance of trial. The discovery rules in Virginia are very limited and, pursuant to Rules 3A:11 and 7C:5 of the Supreme Court of Virginia, defense attorneys are only entitled to receive: (a) any written or oral statements made by the defendant, (b) the defendant’s criminal record and, (c) in circuit court cases only, inspection of specific items in the government’s possession if ordered by the court. In some cases, the prosecutor may be entitled to discovery from the defendant! Additionally, defense attorneys are constitutionally entitled to any exculpatory information that is in the government’s possession.
In practice, some Commonwealth Attorney’s offices do a better job than others in providing this information. Some jurisdictions have an open file policy which will allow you access to everything the prosecutor has, whereas others will only share their information orally the day of trial. Sometimes a formal motion is necessary and other times it is not—it is best to discuss this with your attorney. However, you should not rely on discovery alone to prepare your case. Your attorney will often want to explore all the avenues they can prior to receiving discovery so taking the initiative in your own defense is critical.
On the Day of Trial: Be Early, Be Prepared, and Be Professional
One of the courts in which I frequently practice (Fairfax Juvenile and Domestic Relations District Court) frequently lists a start time for court on their paperwork that is 30 minutes earlier than the actual time. Their expectation is that by being there early, you will have time to meet with your attorney and work on resolving your case. Additionally, this practice provides a buffer for the inevitable delays that will pop up. It is a good idea and one that I recommend following for all courts—defendants should always plan on getting to court 30 minutes prior to the scheduled hearing. Now your attorney won’t necessarily be there yet when you arrive at court that early, but it will save a lot of time and concern if you’re there when we arrive. Some courts have an absolute zero tolerance policy towards late defendants and not being there on time could result in you being found guilty in your absence (for traffic and minor offenses) or a bench warrant being issued for your arrest (for more serious offenses). If you will be late, let your attorney know as early as possible; otherwise we may not be able to prevent the court issuing a bench warrant for your arrest.
Another key is being prepared on the date of your hearing, which means being prepared for a few things: trial, consideration of a plea offer, and—if likely in your case—going to jail. A good criminal attorney will have explained the process and provided a candid assessment of the likeliest outcomes and eventualities. Many plea offers are only open for the day the hearing is scheduled, so you will need to be ready to proceed if you want the best possible deal. Likewise, there is no guarantee that the court will allow you a delayed reporting date or weekends if you’re sentenced to jail, so you should make all all necessary arrangements before coming to court.
Lastly, being professional is an essential way to help yourself in your criminal case. Dressing appropriately for court is extremely important. Outside the courtroom, you should only discuss your case privately with your attorney and stay away from any witnesses that may be there on behalf of the government. There are numerous rules that govern courtroom behavior—common rules include no talking, no cell phones or other electronic devices, and no reading while the judge is on the bench. It is important to follow any instructions that the bailiffs or judge may give you. Listen closely to any advice or suggestions that your attorney may give you inside and outside the courtroom—we spend almost every day in court and know what it takes to make you look your best to the judge and jury.
From offices in Fairfax, Fredericksburg and Manassas, the criminal attorneys at Livesay & Myers defend clients across Northern Virginia against every type of criminal charge. If you are facing felony, misdemeanor or traffic charges in Northern Virginia, contact us to schedule a free consultation today.
See also: Dress the Part: What to Wear to Court.