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.

“WHY IS IT IMPORTANT TO HAVE A DEFENSE ATTORNEY DURING A CRIMINAL INVESTIGATION?” PART 3

We have spent the last two blogs discussing what one should do if approached by law enforcement in the middle of a criminal investigation. Should you accept the police offer to “give your story” without counsel?

A regular reader of this blog was kind enough to join in the discussion and ask an important question. He asks:

You always point out that officers can lie to a suspect to gain evidence. And that’s a reason to seriously consider contacting a defense attorney. Maybe you could address the following question I’ve always wondered about: can the police lie to your attorney? Or the minute you call your attorney in, do they have to start telling the truth? Do prosecutors have to tell the truth (out of court)? I know they can’t withhold evidence, but for example during settlement negotiations could they say they claim to have some evidence they actually do not have?

Attorney Sam’s Take On: Enter The Attorneys

This part of the equation is not as cut and dry as it is where there are no attorneys involved. The rules change a bit when attorneys enter the picture for a few reasons. By the way, by “attorneys” I also mean assistant district attorneys. They are attorneys as well as the rest of us…their client is the Commonwealth of Massachusetts.

First of all, understand another thing about prosecutors. On the law enforcement food chain, they are the top link. They generally make the decisions as to who will be given what sort of treatment. If a temporary decision has been made by the police…that decision will have to be agreed to by the prosecutor(s) in the case. Generally, however, long term investigations, such as for federal crimes or very serious state cases, the investigation is run by a prosecutor pretty much from the start of it.

This is an area which makes it impossible for police officers to bluff too much when a defense attorney enters the picture. Any defense attorney with even a modicum of experience knows that it is the prosecutor who makes the decision as to what type of treatment a suspect is going to get. Therefore, the verbiage where the officer tells you that he or she will “give you a break” or “just wants to hear your side of things” and then let you go your merry way is untrue. The officer cannot make that decision. If the officer makes that offer to an attorney, then they both know it is untrue and so the officer loses all potential credibility with the defense attorney…not only in the case at hand, but in subsequent cases as well.

Particularly when lawyers get involved, credibility becomes very important.

“Sam, what if there is a prosecutor with the detective when he comes to question me? Can he lie to me if I do not have a lawyer present?”

It is very unlikely that the prosecutor will be present at your first meetings with law enforcement. This is because, by doing so, that prosecutor will have made himself a witness and so will not be able to conduct the trial of it. Further, the prosecutor likes to keep him or herself on a level apart from the police. The police, really, are the foot soldiers and the prosecutors generally let the officers do what they have to do within reason.

However, this, too, brings up an interesting point. A prosecutor is less likely to lie to you during the course of an investigation than police are. There is another for this, other than the ones mentioned above. There are certain rules which all attorneys must follow lest they be deemed to be unethically and so might lose their license to practice law or some such punishment. Prosecutors actually have a few additional rules given their particular role in the criminal justice system.

The system is very mindful that lawyers carry a certain amount of influence and can be intimidating to non-lawyers. Therefore, lawyers are supposed to abide by certain rules of conduct when dealing with a non-lawyer who is not represented. For a prosecutor to take advantage of such a situation and to baldly lie to a witness is to invite a whole lot of trouble for the prosecution.

First of all, there could be repercussions with the Board of Bar Overseers, who are in charge of attorney discipline. Further, a large part of any case which finds its way before a judge is that old word “credibility”. Throughout the case, both sides will be trying to look like the “reasonable” and “good” buys before the court…let alone a jury. Therefore, particularly in criminal cases, prosecutors (and defense attorneys who know what they are doing) do their best to seem “above board”.

This does not mean that there will not be spin added to arguments made…but it is very unwise for a prosecutor or defense attorney to be viewed as a liar to the court.

Lastly, credibility is still critical between prosecutors and defense attorneys. You would be surprised how small the legal community is in a place like Massachusetts when it comes to the criminal justice system. Once an attorney, on either side, gets a reputation for being a liar or sleazy, that reputation can haunt that attorney for a very long time, thus jeopardizing future cases.

Now, I mentioned a difference between “spin” and “lies”. There is actually a difference. In fact, “spin” is something courtroom attorneys do almost unconsciously. It is part of our training as advocates. We need to be able to do it…and we need to be able to detect it when it comes to the opposition.

This is why, while a non-lawyer may not be able to separate spin from truth, the experienced attorney should be able to.

Yet another reason to get an attorney involved in your case as soon as possible.

I hope this answers the question and I, once again, invite you to send in such questions when you have them.

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