By Marc J. Victor, Esq
1. Don’t Panic!
It may not be as bad as it initially seems. Prosecutors often overcharge cases, and many cases get pled down to less serious charges. Unjustified cases often get dismissed as well. This is an important time to make good, clear-headed decisions rather than emotionally driven ones. Take a deep breath, clear your head and resolve to make only careful rationally based decisions
2. Prepare for your First Meeting with an Attorney.
Gather all your paperwork and other important documents and items for your attorney to review. You should also prepare a succinct version of events to orally present to your attorney along with relevant witness names and contact information. Inform your attorney about any evidence which you believe needs to be preserved immediately. Come with prepared questions to raise at the end in the event they are not answered by the attorney. The first part of the meeting ought to be the attorney carefully listening to you to gather relevant information. After you have conveyed the relevant information to the attorney, you should then receive a detailed analysis of potential legal issues, an overview of how your case will progress and possible goals of the representation. A comprehensive initial meeting with a criminal defense attorney ought not to be a sales pitch but rather a meaningful detailed and helpful meeting of at least an hour.
3. Select Your Attorney Carefully.
Choosing the right criminal defense attorney will likely be your first critical decision. All criminal defense attorneys know exactly what you want to hear from them. Do not select a criminal defense attorney who simply tells you what you want to hear. If your criminal defense attorney is not bold enough to tell you the truth about your case, this person is not tough enough to fight for you. Select a criminal defense attorney who has decades of broad-based, hard-core, committed and “in the trenches” criminal defense experience, but who is still working aggressively to build a private practice. Criminal defense attorneys at the end of their career may not be as interested in good referrals from past clients as ones currently and aggressively building and maintaining a good name. Meet in person with the criminal defense attorney to evaluate whether the person is simply in it for a fee or really cares about representing people against the state. If their heart is not in your case, move on. Select your attorney as if your very freedom depends on it.
4. Be Aware of Additional Charges, Priors, Allegations, and Enhancements.
The prosecutor has many options available for filing paperwork to increase the risk of higher punishment upon any conviction. If you have prior felony convictions, uncharged offenses or there is some fact about your case which would make the conduct seem worse, be prepared for a document from the prosecutor notifying you of the fact that the prosecutor intends to use this information to increase the punishment upon conviction. You should discuss this possibility with your attorney at the initial meeting.
5. Your Charges May be Scratched, Vacated or Dismissed.
There are many reasons why your charges could be simply dropped. It is possible a prosecutor may determine you have not committed any crime. However, more commonly, criminal charges are dropped because of a variety of other reasons such as the arresting officer hasn’t completed a report, the prosecutor has not yet reviewed the matter, lab reports or important testing are not completed, full information about an alleged victim’s injuries is not yet known, the matter is scheduled for a secret Grand Jury presentation or a prosecutor simply wants more investigation. Most felonies have a seven-year statute of limitation within which to bring criminal charges. Any time after charges are dropped, but before charges are again refiled, can be an excellent opportunity to mitigate or even resolve your case. A skilled criminal defense attorney will know how to attempt to maximize this opportunity for you.
6. Think About Your Goals.
Some criminal defendants have no goal other than to completely beat the charges. Assuming this is a realistic possibility, this then is a rational goal. However, if a Not Guilty verdict after trial is not a likely outcome, you need to establish some reasonable goals with your attorney. Goals such as avoiding any incarceration or avoiding a felony conviction are common goals. Avoiding driver’s license suspensions, protecting other professional licenses, or avoiding certain terms of probation can be other legitimate goals in a criminal case.
7. Evaluate any Plea Offers Carefully.
Despite the fact that most cases are resolved by plea bargain, you are not legally entitled to a plea. Once rejected, you may never again receive another plea offer. There are many people in prison right now serving sentences much longer than the plea offers they foolishly or ignorantly rejected before their trials. Accepting or rejecting a plea offer is a critical decision that must be made with full information after thorough and comprehensive discussion with a criminal defense attorney who has aggressively worked the case. In order to properly evaluate any plea offer, you must have good information about your “real” chances at trial. The better your odds at trial, the better plea offer you ought to receive. You must also have a good idea of the likely sentence if you lose at trial. Nobody wants to accept a plea if there is the possibility of a better plea in the future. Good criminal defense attorneys will fight hard to get the “best” plea rather than just any plea offer.
8. Be a Team Player.
You must take an active role in your defense. You are the person who suffers any consequences from the charges. You lived through the events in question, and you know most of the facts much better than your attorney. You should carefully review every piece of discovery and assist your attorney to understand where alleged facts are wrong or need more explanation. Be available and cooperative with your attorney. Contribute to your defense by suggesting potential witnesses and helping to brainstorm possible legal theories. Ask lots of questions to become educated about the process so you can assist with the defense. The lawyer and client each needs to feel like they are a top priority for the other.
9. The Most Important Things on Your Case Occur Outside of Court.
There is no doubt critical things occur in court. However, most of the important work in defending a criminal case occurs between hearings. Good criminal defense attorneys are good because they have a keen eye for spotting legal issues, researching them carefully, conducting interviews, writing good motions and knowing how and when to raise these legal issues. Important legal issues have the possibility of excluding critical evidence from the prosecutor’s case, and thereby possibly making an otherwise extraordinarily difficult case more manageable or even winnable. Negotiating favorable plea offers also occurs outside of court, and often times with the assigned prosecutor’s supervisor, bureau chief, or even division chief. You should be interested to know and fully appraised of what is occurring outside of court between your hearings.
10. Sometimes the Fight is Not about Guilt but rather about Punishment.
There are criminal cases where the admissible evidence against the defendant is overwhelming. Sometimes prosecutors have an admissible confession, ample physical evidence, multiple unimpeachable witnesses, and ample, reliable scientific evidence to prove their case. However, even with all this evidence of guilt, there is likely still a critical and unresolved issue; the sentence. In Arizona, criminal defendants have a right to a pre-sentence hearing. A pre-sentence hearing can be like a mini-trial solely on the issue of proper punishment. This is a valuable opportunity to present mitigating information, including in court witnesses, who offer information which may have nothing to do with the criminal case itself, but is calculated to educate the sentencing judge about why a lesser sentence is justified. Preparation for the pre-sentence hearing needs to begin early in the case as a hedge in case sentencing is required. Various expert witnesses are often used at this stage of the proceeding to help educate the judge about mitigating facts. Obtaining a favorable sentence is a critical issue and is sometimes the exclusive goal of the representation