Protect your Rights
If you believe that you are a potential criminal defendant under investigation for a crime, you should consult with a criminal defense attorney for confidential legal guidance. An attorney can serve a useful role as the only person standing between you and law enforcement to ensure that your rights are protected. A criminal defense attorney is experienced in offering legal guidance unique to a potential criminal defendant and can offer legal guidance related to how to respond to police questions, how to handle subpoenas for documents, what information you are obligated to provide to an investigator, what information can remain confidential, what can lawfully be done with evidence, and how to collect and preserve evidence important to your defense. When selecting an attorney, you should consider whether the attorney is knowledgeable of the local prosecutors, judges and court practices. A San Diego criminal matter is almost always best handled by a San Diego criminal defense attorney. Please review, 10 Things to Consider when Hiring a Criminal Defense Lawyer.
A person who is the subject of a law enforcement investigation into alleged criminal conduct should never assume that law enforcement will fairly and accurately investigate the matter. Once an investigator has made up his or her mind that a person committed a crime, they will interpret all evidence in a manner that points to guilt, rather than forcing themselves to explore alternative theories. Many police officers do not believe their job encompasses gathering evidence for the defense, even though law enforcement has a variety of tools available and what seems to be unlimited resources available for a fair and balanced investigation. That means that evidence important to your defense may be tainted or lost. These investigators often “leave it to the courts” instead of gathering evidence for the defense.
On the other hand, statements and evidence that you do provide may be used in court against you. You therefore should be extremely concerned with whether you provide any statements or evidence to law enforcement and should always act with the advice of an experienced criminal defense attorney.
Criminal defendants are often shocked to see statements that they made to law enforcement incompletely reported in the police reports or written in a misleading manner. These inaccurate statements may be the innocent product of a bad memory. But as most police agencies will not audio or videotape your statements, the best evidence of what you said is completely lost. Your statement may be interpreted in a manner that supports the prosecution’s theory of guilt so you therefore may find yourself in the uncomfortable position of staking “your word against the police officer’s word.”
For these reasons, you should immediately contact a criminal defense attorney if you believe that you are the subject of a law enforcement investigation.
How to Handle Subpoenas
Subpoenas are court orders directing the presence of persons or things in court. A subpoena is a powerful investigative tool used to obtain information that law enforcement knows or believes may exist. A criminal defendant has subpoena power as well, but this article is directed toward persons served with subpoenas.
A subpoena can never be safely ignored. Contact an attorney immediately for legal guidance if you are the subject of a subpoena.
You have a Constitutional right not to incriminate yourself, and making statements or producing documents can potentially be incriminating. An experienced criminal defense attorney will first investigate whether your response to the subpoena or your proposed testimony is likely to incriminate you. The attorney can then attempt to quash the subpoena, negotiate a process where you may obtain immunity from prosecution in exchange for your testimony, or advise you how to “take the 5th.”
Are you a Witness or a Defendant?
Whether a person is a witness or potentially a criminal defendant is often in the eye of the beholder. You may see yourself as a witness but that is certainly no guarantee that law enforcement agrees with you. Even if law enforcement or a prosecutor believes that today you are a witness, tomorrow they can change their mind and treat you as a defendant as their evaluation of the facts and circumstances of the case changes. Evaluation of a witnesses’ status occurs throughout the case as more information develops that confirms or refutes their view of the evidence. How you fit into their view of the evidence therefore is subject to change. A prosecutor can always add charges or add defendants to a case if they believe that there is evidence to support this decision. In court, a criminal defendant can fight this decision to add charges or to add defendants, but this fight is best avoided at the very beginning of the case.
For example, a criminal defense attorney will be concerned with whether there is any evidence that can be reasonably construed to mean that you aided and abetted a crime; that is, that you helped, encouraged, promoted, assisted in any way shape or form in the commission of any crime. While merely being present at a crime scene is not unlawful, a police officer or a prosecutor may view your participation as being more than “merely present,” especially after they obtain your statement.
Contact our office immediately if you are concerned about your status as a witness or an accomplice.
The Fifth Amendment
The Constitution of the United States guarantees a person’s right to remain silent and not incriminate him or herself. Amazingly, most criminal defendants ignore the simple admonition of law enforcement that “anything they say or can and will be used against them.” The best evidence in a prosecutor’s case is often the criminal defendant’s own words. Even in situations where you know that you are innocent your words may come back to haunt you, especially where you provide a statement that is subject to any interpretation. In some situations, the Fifth Amendment also protects a person from incrimination for the act of selecting and of producing documents in response to a subpoena. Given the high-stakes involved, you should consult an attorney before saying or producing anything to law enforcement.