Being a Suspect of a Crime

Being a Suspect of a Crime

Philippine News Monday, July 23 2012

Are you a suspect? If you are under investigation of a crime, it is crucial that you hire an attorney right away. It is at this point that an honest, straightforward, no-nonsense consultation with your criminal defense attorney is critical so filing a criminal case against you may be prevented.

If you are a suspect to a crime or even a witness, remember that you have a right to have an attorney present during all questioning. When a person advises the police or representatives of a prosecution agency that they have an attorney, the law requires that all conversation with the client must not proceed without the knowledge and consent of his or her attorney. But more importantly, one year and half later, there is no criminal case filed against her.

This type of preventive measure taken when one is a suspect of an investigation and/or crime allows my clients to know that all contacts by the police and the prosecuting agency have to go through me. Many of us who watches cop shows think that we can only have an attorney present after we have been arrested. If the police contact you, either in writing or telephone, and schedule an appointment for you to come in the station to “find out what happened,” you have a right to have an attorney present.

In fact, what I have done in a fraud case whereby my client was contacted by the assigned detective to come in to the station is to prevent any face to face meeting with him. I have provided documentation to assist the police in their ongoing investigation and to this date, my client has not spoken to the police. I can not emphasize enough the importance of using your constitutional rights against self-incrimination and the right to remain silent.

Another client was contacted by the detective to come in to the station or “he will issue an arrest warrant” for her to be brought in. She immediately contacted me to advise me of his statements. Her appointment was on the same day. I contacted the detective and advised him that I have been retained by her and inquired as to whether there was an arrest warrant in existence. The story changed, he stated to me that no warrant has been issued and “she must have misunderstood.” While such tactics are not illegal per se nor am I suggesting that all police officers use such means, it is always to your best interest to have your attorney “do the talking.” To date, my client has not been arrested, she has not spoken to the police and no criminal complaint has been filed.

The police may tell you that you need not have an attorney present because you are not under arrest. But keep in mind that the questions asked of you during an investigation may be sufficient to form suspicion and prove a case of probable cause for either or both a warrant for your arrest or a warrant to search your property and/or home. As I have written before in my article addressing your MIRANDA rights, the police are trained in interviewing and interrogating suspects. As much as many of us think that we will be okay if we go in alone (without an attorney) to the police station—WE WILL NOT. At the conclusion of this so called “friendly conversation” with the police, they may have made you the primary suspect.

Crime scene investigators are responsible for the initial evaluation of the scene, and use various types of resources to cultivate and secure evidence. The investigators write up and organize reports on the activities being carried out at the scene and observations made. These reports are then given to the prosecuting agency for filing. Typically, prosecutors base their initial charging decisions on the documents provided to them by the police. Arrest reports summarize the events leading up to the arrests and provides detail of the crime.

To be “charged” with a crime means to be formally accused of that crime. Prosecutors will generally make an independent decision as to what charges should be filed. As many of you are aware, the prosecuting agencies have been called political animals. This is not far from the truth. Most prosecutors are elected officials. Many of them view their position as a stepping-stone to a higher office. Their charging decisions are often affected by public opinion or important support groups such as domestic violence organizations or MADD (Mothers Against Drunk Driving).

But many prosecutors are fair and even-handed in their approach. They often consider a victim’s views whether to file a criminal charge, or how serious a charge to file. In some cases, where my clients have hired me at inception of the investigation, I was able to schedule a meeting with the filing prosecutor and prevent or minimize the criminal charges filed. In such instances, I presented evidence of mitigating circumstances in the case and/or that my client was basically a “good person who made a stupid mistake” which should not result in a consequence as severe as a criminal charge.

Good negotiations are critical to criminal defense work—whether it is with the local or federal prosecutors and INS officers. In many situations, the prosecutors will refuse to prosecute, either in the interest of justice or because it would be a waste or resources (time and money) to charge such a person with a crime, even when the initial arrest was valid.