It is fundamentally important for all serious criminal defense lawyers to make it clear to the marketplace at large that the right to remain silent is a constitutional right and that failing to cooperate with the police and failing to talk and failing to assist police in collecting this evidence is not an illegal or improper act. Remaining silent is a right – a right you must assert – not a privilege.
Most of the people who come to my office after they’ve made bail are amazed to learn that they didn’t have to cooperate. Many others tell me they knew they had the right to remain silent but they thought the cops would let them go if they talked. Still more talked because the cops promised them they wouldn’t be charged if they confessed.
Criminal defense lawyers need to carefully examine the sequence of events during the arrest of the accused. Timing and the series of events is vitally important.
Criminal defense lawyers must inquire about the circumstances of the confession, what we call an inculpatory admission. If the cops promise not to prosecute if the client confesses, the promise of leniency voids the confession. The same is true if the cops use force and coercion.
A confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. A confession can never be admitted into evidence where the accused has been influenced by any threat or promise.
Unfortunately, most criminal defense lawyers don’t have contact with people until after they’ve been arrested and interrogated. Some criminal defense lawyers are proactive and use the advertising media to disseminate the message that the right to remain silent is a constitutional right and exercising that right is not an illegal or improper act. Unfortunately, the reality is most arrest people find this out after they’ve been arrested, after having waived their right to remain silent, and after they’ve made a statement tantamount to a confession.
Casual criminal defense lawyers often ask the question, “Did my client confess?” If the answer is yes, the casual criminal defense lawyer often ignores the client’s insistence that his confession was coerced and the lawyer begins plea bargaining. I’ve heard far too many lawyers say they will not fight to suppress a confession because the lawyer knows the client is guilty.
“So what’s the point?” The implication of such a statement is that the perceived guilty client
gets a lower level of representation than the perceived innocent client. Indeed.
The point is this: It is the job of the criminal defense lawyer to challenge all of the state’s evidence and hold the state to its burden of proof. It’s that simple.
I make it a policy to always believe my client’s version of the events of the case and the events leading up to his interrogation until my client is proven incorrect. Many lawyers do the opposite. If I am to be a zealous advocate of my client, I must believe what my client says
It’s my job to hold the state to its burden of proof, and that includes suppressing an improperly obtained confession – even if my client committed an offense. Remember, the rules must work for the benefit of the culpable in order for them to work for the innocent.
(Required by Alabama law: No representation is made that the quality of legal services performed is greater than other lawyers.)