- 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 can’t tell you how many times I’ve sat in courtrooms watching droves of people mindlessly plead guilty to very beatable criminal charges. Often I’m thinking, “I would have got that case dismissed!” You CAN most likely afford us (we don’t 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, don’t 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 don’t 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 can’t accuse somebody at trial of “recent fabrication” unless they’ve previously told you to whom they’ve 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 accuser’s credibility.
- Failing to understand Utah’s 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 I’m just fully cooperative and 100% honest with the police, they’ll 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 don’t usually show up to question you just so they can “get your side of the story.” And they certainly aren’t 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?” He’ll typically say, “No, but —.” Witnesses have the right to remain silent, too. Unless you are court-ordered to speak, you typically don’t 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 don’t argue with him).
- Failing to invoke your right to remain silent. I can’t 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 don’t need your permission, they won’t 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 don’t have to speak!). Letting them in your home is usually unwise (you don’t 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. Don’t be an idiot. If you act like a jerk, the cop will make sure it’s in the police report, and you may end up eating asphalt.
- Obstructing justice. Don’t tell people to lie, not show up for court, drop the charges, etc.
- Failing to hire an attorney as soon as you think you’re being investigated for anything. Don’t 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 don’t 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 – that’s because he is not concerned with actual guilty, he’s 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. Don’t allow anybody to intercept it. Many things you tell your attorney are fine via email. But don’t tell him where you “buried Jimmy Hoffa” or where you hid the “smoking gun” via email, etc!
- Thinking “I’m 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 who’s well respected. You may hate the guy you hire, but so what? If he’s good, that’s what matters. In other words, don’t 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, don’t lie to your lawyer (but do use hypotheticals!). For example, if your lawyer tells a prosecutor something is your first offense (because that’s what you told him), then the prosecutor finds out it’s your second, the prosecutor will be mad that you’re 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 prosecutor’s 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, I’m 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 summer’s night. Once the jury hears you lied to the cops, they won’t 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 don’t 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 don’t talk to a cop because your lawyer told you “to remain silent,” the cop will respect you. If you don’t have a lawyer, and tell a cop, “Hey, I know my rights, I ain’t talking!” the cop is more likely to see you as a smart ass. (But don’t talk!)
- Getting mad at the prosecutor and police. Unless they are totally out of line, try to remember they have a job to do (don’t 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 don’t 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 can’t 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 you’ve 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 he’s 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, you’ll find most are pretty good communicators and level headed.
- Thinking “if I threaten or berate my attorney, he’ll 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 don’t make $30,000 on a case), so if you act like a jerk, they won’t 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 won’t do that for you if you treat them badly. They are human, too.
- Thinking “my lawyer is on top of it, so I don’t 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 lawyer’s 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 – don’t just assume he’s on the cutting edge of the law. Don’t underestimate your role! And speak up! The squeaky wheel gets the grease, and lawyers have many clients. Be polite, but be squeaky! Don’t 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.
Top 30 Mistakes Made by Criminal Defendants in Utah
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