The Truth Behind 10 Criminal Defense Myths
We’ve all watched many cop and police procedural TV programs and movies over the years. While deep down inside, we know that there is a significant difference from the screen image of crime and the reality, somehow the actions pervade our thinking and lead us to believe certain things about crimes that may not actually be true. With that in mind, we’ve compiled a list of our top 10 misconceptions.
10. “Without fingerprints or DNA evidence, I won’t be convicted.”
While many CSI-type television shows have perpetuated this myth, it’s definitely not true. For instance, if a felon in Texas is charged with the crime of possessing an illegal firearm, they can be convicted, even if the firearm doesn’t contain their fingerprints. As long as police can prove the element of possession, meaning that the firearm was under the defendant’s control and that they were aware of the firearm, they can charge the felon. Under state law in Texas, a crime is committed if a convicted felon possesses a firearm before the fifth anniversary of the person’s release from community supervision, parole or prison.
Additionally, the burden of proof of the state to prove possession doesn’t mean that they need to show that the weapon was actually in the defendant’s hand. If they found the weapon in a closet where the defendant kept their clothes, and the defendant used the closet regularly, the police can establish the element of control. The state would only need to show that the defendant knew the weapon was in the closet. If the police found it in plain view, this won’t be difficult to determine.
9. “The case will be thrown out because the police did not read me my rights.”
After the U.S. Supreme Court first handed down their decision on Miranda v. Arizona, there was an increased focus by television shows to show that reading the Miranda rights was an important part of a police officer’s duty. Many shows have exaggerated this to the point where every suspect is read the Miranda rights immediately after arrest.
The truth is that a suspect must only be Mirandize if the person arrested is in the custody of police and they plan to interrogate the person arrested. If the police do not read a person their rights prior to questioning, the remedy, as any good criminal defense lawyer knows, is that the statements made by the defendant before the time of Mirandizing can be suppressed at trial if the attorney requests a motion.
8. “Paid attorneys are always better than court appointed criminal defense attorneys.”
This is simply untrue. Court appointed attorneys often have a vast amount of experience working on only criminal defense cases, unlike many private or paid attorneys, who handle a variety of legal issues. Moreover, even for those attorneys fresh out of law school, a private or paid attorney will have the same amount of experience as a court appointed attorney.
While a paid attorney may be well known in the community because they’ve won a high profile case, that doesn’t mean that they are better than a court-appointed attorney. They happened to do well on a case where winning it garnered fame. Their overall record of winning criminal cases either at the trial level or on appeal may actually be inferior to that of a court-appointed attorney.
Additionally, sometimes when people are arrested, they want to hire the family attorney for representation, rather than accept a court-appointed attorney, because they would need to borrow money to hire a paid attorney. The reality is that while that family attorney may have done a great job with your brother’s divorce or drafting your father’s will, he might have little experience with criminal law and may not have seen the inside of a courtroom in years.
7. “I need to call witnesses or the jury or judge will think I am guilty.”
A witness needs to be able to provide testimony that will be beneficial to the defendant’s case. Calling a witness simply for the sake of having one can be damaging to the defendant’s case. This is true especially if the witness isn’t perceived as reliable by the jury, or does a poor job during cross-examination by the prosecutor.
6. “My criminal defense lawyer is either incompetent or conspiring with the state.”
Simply because the case doesn’t seem to be going your way doesn’t mean that your attorney is conspiring with the prosecutor. If your attorney is providing you with plea offers proposed by the state, it’s because they are required to do so. Criminal defense lawyers all throughout the state of Texas are required to communicate the plea offer to the defendant after they receive it from the prosecutor. The defendant’s decision about whether or not to accept the plea offer is generally based upon the advice of the attorney, who has an ethical obligation to act in the best interest of the client. And while generally an attorney answers “No” to a defendant who asks, “Do I have to plead guilty?”, sometimes the mandatory minimum sentence is so long and the case so unwinnable at trial that the attorney will recommend that the defendant take the plea.
In addition, the defendant should not listen to his fellow cellmates, who aren’t legally trained. Just because the attorney isn’t filing ten motions instead of five doesn’t mean that he is not providing adequate representation. Filing unnecessary motions will serve no purpose other than to possibly raise the ire of the judge who must review them.
5. “I can always appeal later.”
Generally speaking, those convicted of a crime in Texas have the right to appeal, unless they have previously waived that right. However, just because a defendant appeals does not mean that they’re entitled to another trial. The odds in Texas of winning on appeal are not favorable. In 4% of cases appealed, the conviction will be reversed and set aside. In 7% of cases, the case will return to the district court.
Ineffective assistance of counsel claims are very difficult to prove. The standard of proof in this type of case in the State of Texas is that the actions of the attorney were “so outrageous that no competent attorney would have engaged in it.”
Sometimes families will not understand why their loved one was convicted, as it appeared to them that witnesses provided by the state were very clearly lying. When the appellate court judge reviews the case, they are looking at the record. No matter how reliable or unreliable witnesses appeared while on the stand, the judge cannot have a first person account of the reliability of those witnesses.
However, a defense lawyer in Travis County, TX or any part of Texas may be able to win a case on appeal if focusing on the errors of law. Such errors would be visible when reviewing the trial transcript, looking at the same things an appellate court judge would be looking at: whether the formation of the jury was correct at the trial court level, whether there were errors made in the exclusion or inclusion or evidence and whether there were errors made in the instructions to the jury.
4. “There is no way that I can be convicted. I didn’t have the drugs on me when they arrested me.”
Just as the possession of a gun by a convicted felon didn’t mean that he had to have the gun in his hands at the time of arrest, a defendant charged with possession of drugs doesn’t need to have them in his hands when arrested. If he throws them out the window of his car or drops it in nearby bushes, they may still be considered as being in his possession.
3. “I want to use an alibi as my defense.”
If an attorney is considering how to build a defense case, he will usually stay away from the use of an alibi. Though it’s the burden of the state to prove that that the defendant committed the crime, using a standard of proof of beyond a reasonable doubt, the burden often shifts to the defendant to prove that they are not guilty if they present an alibi that lacks credibility. Though jury instructions specifically state that the burden of proof is on the state, it can unintentionally shift to the defendant to prove his innocence with the foolish use of alibi.
If the defendant’s alibi is that he couldn’t have committed the crime because his wife said that he never left her side all evening, it isn’t likely that the jury will believe the wife. After all, what wife will want to incriminate her husband?
2. “I need to testify or they’ll think that I’m guilty.”
This is perhaps one of the biggest myths about a defense trial. Part of thinking about how to build a defense case is thinking about whether or not to put the defendant on the witness stand. If there is nothing they can contribute or if they will not do well on cross-examination, it won’t be a good idea to put them on the witness stand.
One of the most important things that an attorney must remind a client of is their constitutional right to remain silent. And juries do take their responsibilities very seriously when it comes to listening carefully to the witness testimony and evaluating guilt, as they must weigh whether or not someone is guilty beyond a reasonable doubt.
Though it may appear that the defendant is trying to hide something by not testifying, suspicion by the jury of a defendant hiding something does not rise to the level of guilty beyond a reasonable doubt. Therefore, even if the defendant is guilty, as long as the defense attorney is able to represent his client in such a manner as to show that there is reasonable doubt, even a guilty client may be acquitted.
1. “I didn’t want to answer questions that the police asked me so the statement that I made to them needs to be suppressed.”
Most television shows have actually done a good job of accurately representing the concept of when a defendant no longer needs to talk with police. Generally, most police procedural dramas will show that only when a defendant invokes his right to counsel will the police be able to stop questioning him.
The myth is perpetuated when people mistakenly believe that after arrest and during police interrogation, the police must stop interrogating a defendant if they say that they no longer want to answer questions. If the police have the probable cause to arrest a defendant, there isn’t much the defendant could say to help his case.
If the defendant does actually invoke the right to counsel and the police continue with the interrogation, a defense attorney could later suppress the statements. Suppression of these types of statements by a defense attorney at trial is an example of how a defense attorney would be able to help achieve a not guilty verdict for a client even if the client were guilty.
Even the best defense attorney is not always successful in getting a not guilty verdict for their client regardless of whether the client is guilty or not guilty. With all of the checks and balances in place in our judicial system, it’s less likely that there is a guilty verdict if the client were truly not guilty.
Nevertheless, an attorney can help by finding the grounds to appeal as previously discussed. Another method of assisting a client who found guilty is expunging a record. An expungement in Texas can may be possible if you were arrested but not convicted, were sentenced to community service or if you were convicted of a class C misdemeanor and were able to finish adjudication that was deferred.
Alternatively, if you were convicted of a crime, you may be able to have your case expunged if you were able to receive a pardon. Your attorney will need to make a motion at the court where the conviction occurred or in the county where the arrest took place. The motion will request that the judge get rid of or expunge the arrest records and the proceedings in court and subsequent conviction. If this motion is granted, public searches will not show your criminal record.
If you need more information or want to discuss your case with an attorney who can assist you, look no further than Morales & Sparks. To request more information about their attorneys or to ask about a case consultation, complete an online form.