Top 30 Mistakes Made by Criminal Defendants in Utah
Representing yourself. What if an ordinary lawyer one day just showed up where you work, then tried to do your job without any training? You get the point. I cant tell you how many times Ive sat in courtrooms watching droves of people mindlessly plead guilty to very beatable criminal charges. Often Im thinking, "I would have got that case dismissed!" You CAN most likely afford us (we dont need a retainer, and you can make reasonable payments).
Failing to try the case before a jury. This is typically a no-brainer. Hey, do you want the prosecutor to have to convince just ONE judge – who may be a former prosecutor – that you are guilty, or EIGHT jurors unanimously. Unless there are unusual circumstances, dont let your attorney talk you into a "bench trial," which means a trial by a judge, not a jury. Make sure you timely demand a jury trial. If you are representing yourself, be vigilant! The judge (especially in city courts) will casually tell his clerk "to set the matter for a bench trial." Object to that!
Waiving the preliminary hearing when it looks like the case may have to go to trial. The "prelim" is often your only shot at getting the testimonial evidence you need to defend yourself. Make sure you only "conditionally" waive it if you think the case may go to trial (some judges dont allow this). If you are charged with any felony or a class A misdemeanor, you have a right to a prelim.
At the prelim, failing to ask hostile witnesses and the "victim" if they have told anybody else their story, wen they told them it, and whether it was 100% the same that you just heard. You cant accuse somebody at trial of "recent fabrication" unless theyve previously told you to whom theyve shared their story and when. Make sure you also ask, "Was the testimony you just gave 100% consistent with what you told each of the other people you spoke to?" If it turns out one of those witnesses gives you a different version, you can destroy the accusers credibility.
Failing to understand Utahs ID law. Utah Code Annotated 77-7-15 says: A peace officer may stop any person in a public place when he has "a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense" and may demand his name, address and an explanation of his actions (you do NOT have to incriminate yourself, so the "explanation" part of that statute is in the gray area, and no Utah case law defines this).
Resisting arrest. If you are arrested, do NOT resist, even if you think the cop has no basis for arresting you – you can sue later.
Thinking "if Im just fully cooperative and 100% honest with the police, theyll go easy on me, or may not even charge me." Always presume that whatever you say to anybody "can and will be used against you in a court of law," and that the police will load you up with whatever charges they can possibly dream up. Remember: cops dont usually show up to question you just so they can "get your side of the story." And they certainly arent there to clear your good name. They often want "the missing puzzle pieces," so they can convict you (better said, "nail your ass!") Convictions are notches on their belts.
Not asking, "Officer, am I under arrest?" If you have not been placed under arrest, you have the right to peaceably leave. Witnesses are not obligated to stay and give "witness statements." A cop may say, "I need your statement." That is very misleading because that implies you have a duty to give him one. You can ask, "Do I have a legal duty to give you a statement?" Hell typically say, "No, but ---." Witnesses have the right to remain silent, too. Unless you are court-ordered to speak, you typically dont have to say anything to anybody, unless a cop is asking for ID. See number 5 above.
Once under arrest, failing to politely demand an attorney. If the cop tells you that you are under arrest, politely tell him you would like an attorney immediately (but dont argue with him).
Failing to invoke your right to remain silent. I cant tell you how many times my clients would have beaten their charges had they simply remained silent. So, zip it! Invoke your right to remain silent by calmly and politely saying something like this, "Officer, I respect that you have a job to do, but I choose to remain silent, and I would like an attorney." In other words, express your desire to remain silent by saying so out loud (it MUST be expressed). If you are mute, write it on a piece of paper. Again, vocalize it! If they try to question you again, repeat yourself!
Refusing to consent to a search. If the police ask you if they can conduct a search, you have the right to refuse. If the police dont need your permission, they wont ask for it. If you are at your home, and you choose to speak to them, close the door behind you, and talk an your front porch (if they have a warrant, let them search, but you still dont have to speak!). Letting them in your home is usually unwise (you dont have to serve them punch and cookies to make their arrest of you a more pleasant experience for them). You have the right to refuse to consent to a search of yourself. In other words, ask them if they have the right to search. If they say yes, get out of their way! For example, a cop does not need your consent to search your car if he claims he smells marijuana. A cop cannot lie about his authority to search. If he needs your consent, he must tell you that. Cops typically cannot enter a home without a search warrant (there are exceptions), but they can usually search a car fairly easily (evidence of a crime).
Raising your voice and being rude with the cops. The cop will always win the "pecker contest." He has a gun, cuffs, and backup. Dont be an idiot. If you act like a jerk, the cop will make sure its in the police report, and you may end up eating asphalt.
Obstructing justice. Dont tell people to lie, not show up for court, drop the charges, etc.
Failing to hire an attorney as soon as you think youre being investigated for anything. Dont wait until criminal charges are filed – hire an attorney asap.
Thinking "I need to be 100% thorough with my lawyer when I first meet with him or her." Wrong! When you first meet with your lawyer, give him a hypothetical. Remember: by law, your attorney is not allowed to let you lie on that stand. Plus, you could tell your lawyer something, then realize you made a mistake, and he might not believe you when you try to correct the error. So, speak to your lawyer in hypotheticals, and always reserve the right to change the hypothetical (some defense lawyers dont even know you can do this). Also, some confessions by their own clients can legally force an attorney to rat on them (like child abuse). By speaking in hypotheticals, you never confess anything to your lawyer. Discuss this very carefully with your attorney. Your lawyer often does not have to know what actually happened – thats because he is not concerned with actual guilty, hes concerned with legal guilt, which is guilty by proof beyond a reasonable doubt.
Communicating confidential things with your attorney via phone, email, text, etc. If you have something to say that is confidential, tell your attorney in person. Dont allow anybody to intercept it. Many things you tell your attorney are fine via email. But dont tell him where you "buried Jimmy Hoffa" or where you hid the "smoking gun" via email, etc!
Thinking "Im going to hire the attorney I like." Who cares if you like your attorney? Do you think the Denver Broncos cared whether Peyton Manning was a nice guy when they signed him to play for them? Hire somebody with experience, and whos well respected. You may hate the guy you hire, but so what? If hes good, thats what matters. In other words, dont just hire some guy you "know from church."
Thinking "I can lie to my attorney." Do not lie to your attorney, not ever! Even if you are totally guilty, dont lie to your lawyer (but do use hypotheticals!). For example, if your lawyer tells a prosecutor something is your first offense (because thats what you told him), then the prosecutor finds out its your second, the prosecutor will be mad that youre a liar and that you made your attorney look like an idiot (remember, most defense lawyers and prosecutors are on friendly terms because they work with each other so often).
Giving original documents and photos to your attorney. Unless it is impossible not to do so, give your lawyer copies, never originals! Law offices have tons of documents floating around. Safeguard the originals. Who knows what a legal secretary may do with your precious, case-winning photo?
Volunteering information while testifying in court. Only answer what your attorney asks you. Loose lips sink ships! Before you answer a prosecutors question, pause, give your attorney a chance to object.
Thinking "the more information I give the police the better." Wrong! Even the most honest people can their facts wrong, or be misquoted by even the most well-meaning cops. Have your lawyer read the police report first, then go from there.
Thinking "Hey, Im pretty quick on my feet. I can lie my way out of this." Cops, and especially detectives, have been around the block, so they can sniff out a lie like I can sniff out a good barbecue on a clear summers night. Once the jury hears you lied to the cops, they wont believe anything you have say. Plus, the cops can charge you with providing false information to a peace officer, and the judge can nail you with perjury.
Thinking "I have not been charged with a crime yet, so I dont need a lawyer." Wrong! Get a lawyer on retainer. If the cops show up at your doorstep, you can call your lawyer, and hand the phone to the cops when he answers. Cops and lawyers typically know one another and respect one another. If you dont talk to a cop because your lawyer told you "to remain silent," the cop will respect you. If you dont have a lawyer, and tell a cop, "Hey, I know my rights, I aint talking!" the cop is more likely to see you as a smart ass. (But dont talk!)
Getting mad at the prosecutor and police. Unless they are totally out of line, try to remember they have a job to do (dont get mad, write a letter when the time is right). Getting mad at the system is typically counter-productive. Assume the system will work for you, and trust that justice will be done. Be optimistic.
Thinking "I can miss court," or "I can call my attorney at the last minute and get a new court date." Missing court will land you in jail, and result in a "failure to appear" charge. And dont trust your attorney to give you the right date. His office, or the court, makes clerical errors all the time. Always double check the time and date, and be to court on time – call your lawyer when you arrive. Your attorney may be able to get you a new date at the last minute, but prosecutors tend to get peeved if that happens more than once or so.
Thinking "I can run." Yes, you can, but you cant hide. This will just make matters worse.
Thinking "I should fire my lawyer because he pissed me off." It may be your lawyer needs to be replaced, but often your lawyer knows what he is doing (especially if he focuses on criminal defense and has over ten years of experience), and by swapping horses you could look unstable, or even like a jerk. By the time youve hired your third or fourth lawyer, you may appear to be very unstable, and like a person that cannot get along with people. So, think twice before you decide to fire your lawyer (a polite chat usually better). Cases go on and on at times, and hes going to GET ON YOUR NERVES AT TIMES. Deal with it. Lawyers are not Realtors that can fake smile all the time. Lawyers are intense, arrogant bastards – and if you take the time to talk to them about your concerns, youll find most are pretty good communicators and level headed.
Thinking "if I threaten or berate my attorney, hell work harder for me." Wrong! A good lawyer may fire you for that. Defense lawyers are not like those guys on TV begging for clients (they typically dont make $30,000 on a case), so if you act like a jerk, they wont think twice about kicking you to the curb. Always be polite with your lawyer, and if you have a good lawyer, treat him like gold (and they are human, too!). Believe it or not, attorneys go out on a limb for certain clients, and they wont do that for you if you treat them badly. They are human, too.
Thinking "my lawyer is on top of it, so I dont need to check in with him." Always check in with your attorney (at least once per week). Be actively involved. If there are complex facts, give your lawyer a fact sheet (or send him an MP3 in which you narrate them). Facts are tough for lawyers to keep track of. Write out questions for witnesses, etc. Look, nobody knows the facts of your case like you do! What is in your head is USELESS if that does not get into your lawyers head, too! Your attorney may not use all your facts, but there is little doubt your questions and facts will be very valuable to him. Also, if you find an article that you think could help your case, send him the link via email – dont just assume hes on the cutting edge of the law. Dont underestimate your role! And speak up! The squeaky wheel gets the grease, and lawyers have many clients. Be polite, but be squeaky! Dont get overlooked. Your life is in his hands.
Thinking "I can go out and talk to the witnesses myself." Wrong! You could get accused of witness tampering. Better to have your lawyer have a private investigator do that.
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