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) 492 3000.

“I AM BEING INVESTIGATED FOR A MASSACHUSETTS CRIME. DO I NEED A LAWYER?”

Various of my recent Attorney Sam’s Takes have led us here. We have discussed DCF and police investigations. We have discussed Clerk Magistrate’s hearings which determine whether probable cause exists to issue a criminal complaint.

We all know that you need a lawyer when you are facing criminal charges in court. But, what about before then? After all, there are no charges pending against you yet…why hire a lawyer already?

You ask the local police officer and she tells you that, for the investigation or Clerk Magistrate’s hearing you do not need an attorney. You check out this daily criminal law blog and seem to be telling you that you should hire a lawyer before you even take one step out of bed in the morning.

Whether and when to engage the services of a criminal defense attorney clearly centers on what the attorney can do for you. Do you need to check in with a defense attorney each day as you close up your work until the next day? Probably not. But if you have reason to believe that your bosses suspect that you are “cooking the books”? Then I would answer differently.

“Won’t I look guilty if I hire an attorney before charges are brought against me?”


Maybe, to some people. Anyone who has any experience in this world will think twice before they jump to conclusions. And if they still think it looks suspicious? Then I would say to forget about them. What is more important…protecting yourself or what these others assume?

Of course, all this depends on timing and strategy. What is it you need the attorney to do for you at the point in time that you begin to get nervous. Remember that simply because you have engaged the lawyer, the lawyer does not automatically have to go and approach someone. It depends on the situation which is why I always tell you to get an experienced criminal defense attorney. An attorney who has been in this situation before will be better at reading the signs and advising the timing of certain actions.

Maybe you simply need the lawyer now to make sure he is ready for when you are approached by law enforcement. Perhaps you need to get advice in advance of something unexpected happening. Maybe you do need the lawyer to contact those investigating you and start being a protection for you.

It simply depends on the situation. One simple swift action done as a knee-jerk reaction without thinking all the time is something that you neither want nor need. It is also a risk you take if retaining someone who is not a strategic thinker or has little experience.

Last week, we discussed how a lawyer can help you at a Clerk Magistrate’s hearing. Once you receive a summons from the court, of course, the judicial cat is out of the bag. You know that you are being investigated for criminal activity and so they would expect that you would take steps to protect yourself whether you are guilty of any wrongdoing or not.

If the police suddenly show up at your door and tell you that they are investigating you because they have heard that you have been walking around the city groping women, you know that you are being investigated for a crime. There is no need to stay quiet about a need for a lawyer. While the police may tell you that there is, you have to remember their part in the situation. Taking time out to get a lawyer not only slows down their building of a case, but will likely become a hindrance to the case because you will be protected by someone who knows the tricks often successfully played on the unwary…both guilty and innocent.

Naturally, they do not want a defense attorney involved. It is considered bad for the criminal investigation.

“But if I really need a lawyer because I may be in trouble, and they tell me that I do not need one, then that would be a lie, wouldn’t it?”

Sure.

“And they cannot lie to me during the course of an investigation, right?”

Wrong. Investigators by law are allowed to lie. They are taught to lie. After all, as far as they are concerned, they are after the bad guy. Tricking the “bad guy” into an admission is called “good police work”.

Here is perhaps the hardest part of what you have to understand. The issues in criminal justice are deadly serious. Lives, both innocent and guilty, are ruined every day during criminal investigations and prosecutions, just as they are when crimes are actually committed.

You have been brought up to believe that law enforcement simply wants to uncover the truth. To some degree, that is correct. However, they routinely decide on what the “truth” is before all the evidence is in. That is when it becomes simply building a case.

The sad and offensive truth is that this is a game. Yes, the players are quite serious about the game, but it is still a game nonetheless. This is true from investigation through trial.

“Are you saying that law enforcement does this for fun?”

Of course not. For the most part, they believe in what they are doing. Just like I do.

But they utilize “tricks of the trade” to be most effective. Just like I do.

And, after they have put their blood, sweat and tears into building a case and performing that case in front of a jury, they want to win. Just like I do.

Tomorrow, we will look at a few examples and bring this discussion to a close. You will learn, if it was not already evident, why I am such a true believer in what we criminal defense attorneys do..

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