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Successfully Avoiding Criminal Prosecution

Posted by attorney Alan Fenster

One of the golden rules of the criminal defense bar is that a client should never talk to the police when he/she has been arrested for some alleged criminal conduct. However, a creative lawyer should never blindly follow a so-called "golden rule". This is particularly true when an innocent client has been arrested. In such situations, the creative criminal defense lawyer should leave no stone unturned to help the client avoid a criminal prosecution in the first place.

Just because someone has been arrested for a crime does not mean he must thereafter be prosecuted. Law enforcement must bring the police reports and any other evidence bearing on the arrestee's guilt to the applicable prosecutor's office for review to determine whether criminal charges should be filed and the case taken to court. The prosecutor must decide whether there is enough evidence to believe there is a reasonable probability that the charges to be filed can be proved beyond a reasonable doubt. If the evidence submitted does not meet that requirement, then the case is not filed and the arrestee need not even go to court for an arraignment.

If the person arrested employs a lawyer immediately after his arrest, the lawyer should make every effort to assist law enforcement in becoming aware of exonerating evidence and thus preventing the case from being filed. For example, in the area of spousal abuse, a husband and wife may get into a heated argument where the wife [or sometimes the husband] gets so upset that the police are called and a false or exaggerated claim is made of physical abuse. In Los Angeles as well as most jurisdictions in the United States, if the police are called on a domestic violence claim, after the O.J. Simpson fiasco, somebody is definitely going to jail, no matter how minor the problem may be. In Los Angeles, bail on a charge of domestic violence is automatically $50,000.

In such situations, the police report will usually reflect sufficient grounds for the case to be filed by the prosecutorial agency. Police officers are trained in the laws of spousal abuse, and it is almost a certainty that their reports will cover all bases, even if they have to fictionalize or exaggerate the statements of the "victim". However, if the innocent arrestee hires an attorney before the case goes to the prosecutor, it is sometimes possible to intervene with the investigating officer before he gets to the prosecutor and demonstrate how the claim is false, thus preventing the case from getting filed. For example, recently I represented a man who was accused by his wife of hitting her several times before she called 911 and the police arrived. When the police contacted the wife, she was crying, disheveled, and had bruises on her face. Sounds like a slam dunk filing, right?

Wrong. It turned out that the wife had a previous felony conviction for assault with a deadly weapon on her husband, and during the argument between the husband and wife he had called his mother, a former police officer, and told her that his wife was attacking him again. I contacted the investigating office and asked him to speak to the mother and check out the criminal record of the "victim". As a result of this intervention, no criminal charges were filed, and an innocent man did not have to even go to court.

Now back to the golden rule of never letting your client speak to the police. After his arrest and before any charges were filed I was hired by a man charged with felony assault with a baseball bat. The victim was in the hospital with a concussion and there were several witnesses to the assault. Again, a standard filing, one would think.

Wrong again. The assault by my client was the culmination of various events where he was attacked by friends of the victim, and in retaliation he confronted one of these friends while the victim was present. After a fight with one of these friends, the victim ended up fighting with one of the client's friends, and eventually my client had to come to his friend's assistance by hitting the victim over the head with a baseball bat. With my heart in my mouth, I brought my client to meet with the investigating officer, along with other witnesses who had information about the events that led up to the brawl. After interviewing my client [who had recently applied for a law enforcement job so any criminal filing had all would have eliminated his employment in law enforcement] and our other witnesses, the investigating officer recommended that no charges be filed against my client! So much for the golden rule.

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