When Do I Need to get a Criminal Defense Lawyer?
The answer is easy! NOW! While you can wait too long to retain or consult with a defense lawyer, you can almost never have your defense lawyer too soon. Do not wait for an arrest. Sit down with your lawyer as soon as you think you’re involved in a criminal issue. It’s the lawyer’s job to figure out if you are a “target” or just a witness. Are you a suspect or merely part of an investigation? Ideally, the only direct conversation you should have with a LEO Law Enforcement Officer, investigator, deputy district attorney or other prosecutor is to say “I’m happy to chat. Here’s my lawyer’s name and phone so that she can arrange it with you.” Say NOTHING about what you did or did not do. Leave it to the lawyer to advise you as to what if anything should be discussed with the LEO. All you want to say is “I have a lawyer so talk to them and make what arrangements need to be made.” Your lawyer might well say directly to the LEO that you will not be doing an interview at this time. You can’t advise them yet since you have no discovery, and know about nothing regarding the case.
Role of a Defense Lawyer in Criminal Investigations
Civilians worry that having a lawyer suggests that they are guilty. The opposite is true. LEOs and prosecutors would almost always prefer to talk to the lawyer instead of to the civilian. The lawyer and the LEO start by speaking the same language, one which you don’t speak. The LEO can be more open and more direct talking to your lawyer. If you talk to the law, no matter what you think you did or did not say, you WILL have said more than what you should have said. The only safe course is to say nothing about the case or investigation. That is the lawyer’s job. The LEO knows her lines. The lawyer knows his lines. You do NOT know your lines! For example, civilians tend to believe LEOs when the officer says “we just want to hear your side and not just one side so we can figure out what happened.” The reality is that while there ARE such things as legitimate investigations, once the officer is saying “we just want to hear your side” it is almost certain that they have you as the #1 suspect in the investigation. Not only do you not speak the language, you don’t even know what is being investigated. You might think the officers are interested in your plants growing in the garage. They might really suspect you of a bank robbery! Again, it is not your job, training or skill set to have that conversation, and you CAN do yourself great harm. Things cannot be “unsaid.”
The Necessity of Recordings in Legal Interactions to Ensure Accuracy and Honesty
Finally, most civilians who do choose to talk to the LEOs won’t even know that there MUST be a recording of the conversation. Otherwise, whatever the officer claims was said is what will be believed. You might have said “I did not do that,” and the report of the interview might read “I did that.” Intentional prevarication by the cop or a simple human error or typo? That is a discussion that should never happen! And with tape rolling, arguments over what was actually said should not happen at all. Having a lawyer in the room raises the bar on what level of honesty can be expected from the officer. This is governed by statute: CRS 24-31-902(1)(a)(III) makes evidence that should have been recorded presumptively inadmissible.
The Perils of Unwitting Self-Incrimination in Conversations with Law Enforcement
“Can I show you a new suit?” “No, I’m looking for a raincoat.” The civilian suspect would often say “I told them NOTHING! In fact, you already said:
- I am not shopping for a suit
- I AM shopping
- I am in fact shopping for a raincoat.
Does that matter? It might matter a lot if the investigation involves a stolen raincoat and not a stolen suit. You do NOT know what the officers are thinking or what they are suspecting. Perhaps our bank robbery took place at the same time as your raincoat shopping, at the bank next door. Did it help you to share that you were in the right place at the right time to have committed the suspected crime? Not much!
Timing and Benefits of Early Legal Representation in Criminal Matters
So the right time to get your lawyer going is as soon as you believe that the cops have an interest in you. If it turns out to be nothing, that’s wonderful. And it may take very little lawyer billable time to discover that. If it turns out to be “something,” then you’ll be glad you got the lawyer earlier in the case. Additionally, you WILL sleep better once your lawyer is on the case.
Next: I think I need to have a chat with a criminal defense attorney. How do I identify the right lawyer for me and for the situation?