The Law Offices

I think one of the most worrisome aspects of dealing with criminal defense attorneys that people confront is what to say and what not to say about the crimes for which they are accused. The short answer is to tell the whole truth as you saw it, and I'll explain why.

This problem comes up most when people feel that telling the whole truth will lead to their conviction, so people will hide some facts from the attorney, hoping the attorney will be better equipped to defend the case.

Everyone should understand that hiding facts from attorneys is a very bad idea. The attorney-client relationship cannot function without complete trust and candor.

First, your consultations with your attorney are protected by the most powerful privilege and confidentiality law. The attorney-client privilege, without question, carries more power to protect secrets than the doctor-patient privilege, husband-wife privilege, therapist-patient privilege, and priest / pastor-penitent privilege. When it comes to court cases, what you say to your lawyer is more sacred and secure than any secret you say to anyone else in society. Therefore, don't hold back; in fact, err on the side of telling more.

You should be candid and forthright with your lawyer. You don't want your lawyer to be surprised in court. You don't want the prosecutor to know about facts that your defense lawyer does not. Surprises to defense counsel can lead to disastrous consequences for your case.

Second, your lawyer will be able to fashion a defense that incorporates negative facts, and makes them appear to be in your favor. Let's pretend there is an alcoholism problem in your past, and you are worried about the fact becoming a hinderance to successful defense of your case. If your lawyer does not know the extent of the alcoholism, and the other side does, then the other side has the advantage. The prosecution would paint you as an unruly drunk, and defense counsel may not be prepared to rebut that claim.

Had he or she known about it before, your lawyer could have softened the news by making it a part of the defense story, i.e., "my client is a sad person who drank to forget about Vietnam combat, but in all the times of drinking his pain away, he never committed a crime, and he was sober on the day in question." See? Bad facts can become good facts. Even your greatest sins can create wins.

Third, even if what you would say to your attorney would amount to a full confession of the crime charged, you are not required to testify. Your attorney can keep you off the witness stand, as is your Fifth Amendment privilege not to incriminate yourself. The judge must instruct the jury not to make negative conclusions about not testifying, and the prosecutor cannot comment on your refusal to testify. Remember, you are innocent until proven guilty beyond all reasonable doubt, and the prosecutor may not have enough evidence to convict. You could still win at trial even if you actually committed the charged offense.

Fourth, there are cases that are not worthy of a trial. In such cases where the evidence is overwhelming and a plea agreement should be reached, then your attorney should know all about your life to plead your case sympathetically to the prosecutor and the judge. If your attorney knows all the facts about your life and the case, then he or she can plead the case to a lesser charge, or work out an alternative sentencing arrangement that minimizes jail or prison time and substitutes counseling programs, classes, work-furlough, etc.

Finally, you should be hiring your lawyer because he or she is a creative intelligent professional that knows how to fashion a good defense out of facts, evidence and law. If you are hiring a lawyer that's cheaper than the guy down the street, then you may not have the trust in your attorney that you need. As I have said before, client and attorney must have trust in one another; mutual suspicion will lead to negative consequences in your trial, or will lead to a plea agreement that could have been less harsh.

I find that defending cases aggressively requires two things. First, I must have more information about the case than the prosecutor does. By having more information I can make a superior investigation plan. Also, my credibility as an attorney grows, because I can present verifiable data to the prosecutor. By appearing to have superior quality and quantity of data, the prosecution's confidence in his or her case weakens. At the same time, I appear to be objective, such that when I say a fact exists, it does. You want your lawyer to have control of the facts.

Second, to win a trial, the defense must be able to present itself as if it is eager to proceed to trial. Superior investigations allow defense counsel to prepare better cross-examinations, opening-statements and closing-arguments. By being forthright and honest to your attorney, you are giving him or her a chance to be better prepared.

There is no question that you should tell your lawyer everything you know about yourself and your case. You should do so as soon as you hire him or her. The sooner your lawyer knows about your version of the facts, she or he can get the investigation going, and begin fighting for you. You should let your lawyer decide what you should or should not say; you should not try to judge and decide for yourself. That is why you want to hire a professional, anyway; isn't it?