Because there is so much riding on the outcome of you case—loss of liberty and a lifelong criminal record—it is critical that you choose a competent criminal defense attorney to represent you. The following steps will serve as a guide in this process.
It is important to understand that criminal defense is a specialized and particularized area of expertise that is not shared with other types of litigation or areas of expertise. Often individuals are facing loss of liberty and the risk of significant jail time if convicted.
The most important question to ask when interviewing a criminal defense attorney is how many cases the attorney has actually gone to trial with and how many cases through verdict. Ask for a list of names of the cases and the courts in which they were pending so you can check this information out for yourself. You cannot be too conscientious or too careful with this; It is very important.
It is detrimental to the defense to allow a family attorney, real estate attorney, or corporate attorney to handle the arraignment process until a criminal attorney is retained. Many important facts are learned at the arraignment from the prosecutor. Often, it is critical to speak with witnesses and conduct investigations immediately after the arraignment. This is before the prosecution can speak with these witnesses and before the police have had a chance to speak with the witnesses. Importantly, understanding what is required at an arraignment and a bail hearing is not readily understood by the non-criminal practitioner. The wrong attorney can cause an individual to remain in jail or to pay a bail higher than would be normally warranted. Using funds to pay a higher bail means that those funds are not available to pay for legal fees for the litigation of the case.
Plea bargaining is not difficult for most attorneys. Often, the inexperienced attorney or an attorney who is not capable of litigating a case to verdict will take the easy route of accepting an initial plea offer and persuading their client to accept the offer or “deal”. The inexperienced attorney or the attorney who is not capable will often fear the facts, which are usually unpleasant, as this is criminal law. This fear will cause this individual to accept a plea offer and convince a client to accept an offer without ever having conducted any investigation of the facts and circumstances of the case. An experienced attorney will best be able to advise a client when they should accept a plea agreement. They will be better equipped to negotiate a better plea agreement because they understand all of the pretrial and trial issues which will affect the case.
An experienced attorney is better able to assess the strengths and weaknesses of the prosecution’s case and the likelihood of success at trial. Where a client admits to some wrongdoing, the experienced individual is aware of the defenses his client may be afforded and is capable of fighting back and demanding what the law requires: that the prosecution prove their case beyond a reasonable doubt.
You would not allow your orthopedist to perform brain surgery, so why would you let your corporate, real estate, or family attorney handle a case which could result in loss of liberty, loss of livelihood and a lifelong criminal record.
The initial phases of litigation can be critical. Often before bail can be made, a bail sufficiency hearing is required. The practitioner will need to be familiar with the process, the documentation, and the paperwork necessary to satisfy the prosecutor and/or Judge so that the client can be released from jail pending the prosecution of the case. With serious felony charges, it is critical to obtain as much information and to conduct an investigation at the earliest possible time so that witnesses and evidence can be presented to a grand jury and/or preserved for trial.
An inexperienced attorney will go to trial haphazardly, without the proper preparation, without conducting the necessary discovery, without making the necessary pretrial motions, without having conducted proper investigations, without having gathered and prepared witnesses properly, and without having spoken to experts to gain knowledge about the prosecution’s case and their proposed expert testimony.
Too often individuals are overly concerned and cost conscious about the price of defending their liberty. They will, however, spend money on luxury items and even finance beyond their means to fund a home or car they could not readily afford. Many times litigation of a criminal case involves the knowledge and consultation of one or more expert witnesses. These experts are expensive. However, they enable an attorney to mount a formidable defense and combat the prosecution’s theory of the case. Even if the experts are not called to testify for the defense, they provide critical assistance and knowledge to the defense attorney to allow her to be qualified in the expert’s area of expertise. The attorney is then able to attack the conclusions set forth by the medical expert, expert pathologist, ballistics expert, DNA expert, handwriting expert, or any other expert presented to the jury.
You would never think to tell your heart surgeon how to conduct surgery. But sometimes individuals assume that they have a working knowledge of the evidentiary rules, legal principles, and defenses which will be successful in front of a jury. Competent counsel will obtain the necessary information from the client, will ask the right questions, and will gain a grasp of the facts better than the client by the time the case goes to trial.
Each phase of the litigation in a criminal prosecution is potentially critical to the outcome of the case. It is essential to have competent counsel throughout each phase of this process where loss of liberty and a lifelong criminal record are very real and possible consequences.
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