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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: November 29, 2012

WHY GET A CRIMINAL DEFENSE LAWYER BEFORE YOU ARE ARRESTED?

You have, no doubt heard about things like “ good cop – bad cop” and “playing cat and mouse”. Regardless of the circumstances, they are games. No doubt they are used in under very serious circumstances. Who wins these games truly matters.

But that does not make them not games.

Whether it be as intense as a homicide investigation or simply trying to get an admission out of an alleged drunk driver, the procedure is a game. A game in which lesser games, such as those to which I referred above are used.

Likewise, as the defense attorney and the prosecutor plan strategies and try to bend the rules of evidence to their favor, the courtroom theatrics are a game.

Lives hang in the balance. That is true. However, the two sides of advocates are not looking for any truth. They have already developed what they will put forth as the “truth”. The goal of the game of trial is to convince the jury or the judge. It is very serious business. However, it is still a game.

My various Attorney Sam’s Takes have ranted about this from the beginning. In order for you to understand how the criminal justice system works, you have to acknowledge that fact…as distasteful as it may seem.

“Sam, are you saying that prosecutors do not really care about issues of Justice…that they are just engaged in a game?”

No and yes. Prosecutors, by and large, do care about issues of Justice. Just as defense attorneys do. We just look at it from different perspectives. You already expect that of defense attorneys. You know that we are trying to represent and protect our clients. But, you must understand that the same is true on the other side of the aisle.

The police and investigators put a case together. They decide what the “truth” is…based upon how they see the world. We have discussed that view many times before and, I am sure, will again. The prosecutor then inherits that “truth”. That “truth” indicates to the prosecutor what “justice” is. After that, it is the game of how to win and achieve that sense of “justice”.

No, those are not typo’s in the words “justice” and “truth”. I intentionally capitalize some and put others in quotes.

What happens at the initiation of the case immediately puts the prosecution in the lead of the race for a verdict. Law enforcement has done its investigation and the prosecutor has the results.

If you wait until you get to court to find a lawyer, your lawyer will then begin to try to catch up. She may be months behind the prosecution. The defense will also be given a very limited time to get up to speed and certain rules of criminal procedure which will make it fairly difficult to discover everything.

This is why I tell you that in all these various cases, you should seek to retain counsel as soon as the possibility of being investigated comes up. You are already behind. Best to catch up as soon and as much as possible. After all, if the prosecution wins….you are the one who loses.

True, a defense attorney may be limited in what he can do for you during the investigation. However, he can always advise you and try to read the “tea leaves” of which he is so familiar having had years of experience. That’s right…that’s why I keep suggesting an experienced attorney.

Of course, during the investigation, there may be much more that the defense attorney can do to protect and to defend you about.

However, if you wait until you are being arraigned, a lot of damage has already been done. The investigation is over, The prosecution has its “truth” and “justice” goal. The accusations are already added to your criminal record.

All that is left…is to play the game until one side or the other wins, or a plea bargain can be made.

To some degree, you have already lost.

Of course, the game is far from over. And, again, you are best served with an experienced defense attorney who knows the rules and realities of the criminal justice game so that your side can give you a chance against the prosecution.

Make no mistakes. There are no saints in this procedure. Despite the issues involved, this is a contest…a game…between attorneys. It is not simply the ‘evil shark of a defense attorney” vs. the “knight errant of justice, the prosecutor who merely seeks Truth, Justice and the American Way”.

It is lawyer vs. lawyer. And one of those sides has a good head start and a lot of power. The person they are fighting over is you.

What do you want to have on your side?

That is the question you need to answer.