Understandably, subjects of a criminal investigation are reluctant to hire a criminal defense attorney before they are charged. They think to themselves that they might be wasting money, if they are ultimately not going to be charged anyway. This flawed logic is akin to believing that you should not quit smoking until you have lung cancer. Just as a smoker can greatly improve his health by quitting smoking before he contracts a serious illness, so too can a suspect greatly ameliorate or even eliminate his damages by hiring an attorney before he has been charged.
The first thing that a defense lawyer does is build a wall of separation between the suspect and the detectives or other members of law enforcement. Very often, a suspect does irreparable harm to his case before ever consulting an attorney. Many defendants think that they are smooth enough to meet with a detective and talk their way out of charges. The problem with this approach is that police detectives are highly trained in the science of interrogation, while usually only spies, secret agents and special ops officers have any training in counter-interrogation techniques. Police detectives may catch a suspect unwittingly making inconsistent statements or showing non-verbal signs of deception, even while the suspect naively believes that everything is going his way.
Rightly or wrongly, police officers tend to consider an unrepresented suspect’s asserting his right to remain silent as evidence of guilt. Although such silence is not admissible in court, it may influence law enforcement’s decision as to whether to charge a suspect and what to charge him with. When an attorney advises his client to remain silent, law enforcement simply views this as standard operating procedure, rather than any indicator of guilt.
A defense attorney can negotiate with the district attorney’s office or police detective with respect to what charges will ultimately be filed. The initial charges will play a major role in plea negotiations after charges have been filed. The less serious the initial charges, the better a defendant’s ultimate outcome is likely to be. Likewise, a defendant is in far less jeopardy if he elects to go to trial, if his initial charges are less serious.
Sometimes, a defense attorney can successfully argue for no charges to be filed at all. Usually, this is through the work of the defense attorney’s own investigation with the assistance of a licensed private investigator and/ or polygraph operator, but not always. In one recent Centre County case I had, I pointed out to a drug detective and prosecutor that the police had conducted an illegal search through an innocent mistake. Had they filed charges, the evidence would have been suppressed, meaning that it would not be admissible in court. The detective was actually appreciative that I pointed this out, and opted not to file any charges. The client was even more relived, because it would have been very hard for him to get a job with an open criminal charge on his record for the next six months, until the case would have ultimately been resolved in his favor.
The issue of bail is yet another reason to have an attorney before charges are filed. In Pennsylvania, felony charges are almost never sent via a summons in the mail. Rather, the police officer files the charges at the magisterial district court, and obtains an arrest warrant for the defendant. If a defense attorney is already involved, he can schedule what is variously known as a “walk-in arrest” or “arrest by appointment,” in which the defendant turns himself in at the magisterial district court at an agreed upon time. This not only spares the defendant the inconvenience and humiliation of being led out of his home or place of employment in handcuffs, but turning oneself in with a lawyer increases the likelihood of lower bail, as the judge will deem the defendant to be less of a flight risk.
Anyone who follows the news knows that sophisticated defendants “lawyer up” as soon as they are made aware of a criminal investigation. Conversely, when I was a public defender, I dealt with the other end of the socio-economic spectrum. Many of the people I represented could have greatly reduced their harm or avoided charges altogether had they had the benefit of defense counsel during the investigation. Some of these poor souls wanted a lawyer before charges were filed, however, public defenders can only represent indigent defendants who1) have already been charged and 2) face the possibility of incarceration.
If you are the subject of a police investigation, and can afford an attorney, you are a fool not to do so. If you cannot afford an attorney, then the best advice I can give you is to either keep your mouth shut, or if you are going to talk to the police, do not lie. This will at least make it much easier for the public defender assigned to your case down the road.
Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University. He is experienced is representing clients in the pre-charging phase of criminal cases.