Interviewer: What are some of the things that clients have done that may hurt their case?
Always Have Your Attorney Present When You Speak with Law Enforcement
David: This may apply to any criminal case. One of the biggest mistakes that is made is talking to law enforcement without having a lawyer present. That is a serious problem, as even an innocent person can incriminate themselves.
Many people feel, “I’ve got nothing to hide and if I just tell law enforcement the truth, we’re going to get this all straightened out.” People also often believe that the cops are going to be lenient with them and that they might let them go if they cooperate with them.
Even an innocent person can say things that help the prosecution’s case. Let me give you an example. An individual has been charged with a sexual assault. They know they did not do it, but law enforcement comes and they say, “We are investigating a sexual assault. Where were you on such and such particular night at such and such time?” The person replies, “Well, I was at the convenience store just down the road from my home.” Unbeknownst to the individual, however, the alleged sexual assault happened in the immediate vicinity of the convenience store in question. The person would have just told law enforcement they were in the area where the crime occurred and had the opportunity to commit the crime.
Seemingly Innocent Answers to Police Questions Can Lead to Self-Incrimination
Let’s say the allegations involved a child. Law enforcement ask, “Does your child take bath?” Then the accused replies, “Yes, my child takes a bath.” “Do you sometimes assist your child with the bath?” The person responds, “Well, yes, I’m the father. Of course sometimes I assist my child taking baths.”
To the innocent father, what he just said was completely and 100% innocent. However, law enforcement conveniently neglected to inform the father that the allegations involved inappropriate touching of the child while the child was taking a bath. The individual would have just confirmed two things that the child had said with regard to the allegations. That’s just one example of how a completely innocent person may say things that will help confirm parts of the prosecution’s case.
It Is Inadvisable to Resist Law Enforcement
Another mistake to avoid is to resist law enforcement, unless law enforcement is using excessive force that is really endangering the person’s life. They should not resist law enforcement. Resisting law enforcement will only make the situation worse. It creates another charge the person must deal with.
Lying to a Federal Law Enforcement Officer Is a Serious Offense
If someone lies to a federal law enforcement officer they can also face an additional charge. For example Martha Stewart, she did not get convicted of the original charge she faced.
They did not actually go forward with the charges against her. What they actually convicted her of was making false statements to law enforcement investigators. It is better to just not talk to law enforcement officers without an attorney present. Law enforcement officers can sometimes hear what they want to hear and they may contort what you have said.
They may hear the parts that they want to hear, and ignore the parts that they that do not support their position. By choosing to just not answer law enforcement’s questions, the accused can avoid the he said/she said situation where the law enforcement officer claims the accused said one thing, while the accused claims that he or she said something completely different. All things being equal, Courts will typically side with the law enforcement officer.
Federal Law Enforcement Officials Do Not Always Record Conversations and This Can Lead to Your Word against Theirs during Trial
Even in this modern day it is not unusual for federal law enforcement officers not to record statements, believe it or not. Law enforcement will often fail to record statements because they know that judges tend to believe law enforcement officers over the accused. That is why it is very important not to make statements unless you absolutely have to.