Should you or your lawyer be worried about the statement? Is it actually incriminating?
The first thing your defense lawyer will do is determine whether the statement helps or hurts the defense. An incriminating statement is more likely to be used by the prosecutor; whereas, a non-incriminating statement is more likely to be ignored by the government, but may or may not be of interest to the defense. An incriminating statement is any statement that directly helps to establish your guilt or creates a reasonable basis for jurors to infer guilt. When analyzing whether a statement is truly incriminating the attorney will consider the actual statement and the anticipated defense. For instance, "I shot him!" is pretty incriminating . . . unless, of course, your defense is self-defense. Then "I shot him" is not so damaging. In fact, if the statement goes on to say "I shot him just as he tried to thrust the knife into my heart!" your statement is pretty helpful. So depending on the substance of the statement and the defense, your lawyer may want the statement to come in.
What if you and your lawyer decide you like the statement, can your lawyer offer your statement into evidence?
NO. Generally, only the prosecutor can offer the defendant's statement. If the prosecutor offers it, the statement is not treated as hearsay; it is a statement by a "party opponent." If the defense tries to offer a statement in hopes that the jurors will accept it as true, the statement is considered hearsay - typically, the most unreliable kind because it is deemed self-serving - and is not admissible. Are there times when a defense lawyer will want to use the statement for some other (non-hearsay) purpose? Maybe. In those cases, the lawyer will need to establish the non-hearsay purpose and explain the relevance to the court.
Can the prosecutor pick and choose only the worst parts of your statements and not mention the portions that are helpful to your defense?
Yes, the prosecutor can introduce bits and pieces of the statement, but your defense lawyer will be allowed to introduce any remaining portions of the statement that are relevant to those portions already admitted. For instance, if the entire statement was "I shot him just as he tried to thrust the knife into my heart!" - the prosecutor might only be interested in getting out the "I shot him" part. Defense could follow up on cross-examination with questions to bring out the remaining portion of the statement: "Isn't it true officer that my client told you he shot the dead guy just as he (dead guy) was about to stab my client?"
Can they convict you on your statement alone?
No, you cannot be convicted based on your statement alone. In order to be convicted, there has to be some evidence - other than your statement - that a crime was committed. The standard for the other evidence is very low; it need only be slight. However, before you can be convicted, the entire evidence - your statement and the other evidence - must establish your guilt beyond all reasonable doubt. Here's how it works in trial: DA presents whatever evidence she has to support your guilt, including the statement. Defense attorney makes a motion to dismiss due to DA's failure to establish the "corpus delicti" (i.e. that a crime occurred) independent of your statement. Judge reviews evidence and if he determines that there is insufficient evidence of a crime, he will dismiss the case. If he decides there is enough the case goes to the jury. But judge will require the jury to determine whether there is evidence of a crime before they can use your statement to convict you.
So your lawyer and you decide the statement does NOT help you, what can be done to minimize the damage?
With any statement, there are one of several possible scenarios that the lawyer will explore. 1) It was not a properly Mirandized statement; 2) it was not voluntarily given; 3) the cop is lying or distorting the facts; you never gave any statement or did not give that particular statement; 4) you gave the statement, but it was false. Depending on which of these your lawyer is most interested in pursuing, there are different strategies and remedies. Each is discussed below.
Cops did not read you your Miranda rights . . . does it matter?
If you gave 1) an incriminating statement, 2) that the prosecutor wants to use at trial, and which you gave 3) while in police custody 4) and during a police interrogation 5) without a valid waiver, your lawyer can file a motion to suppress the statement. A few quick points to clarify. "Custody" means that you were formally arrest or detained under circumstances that a reasonable person would not feel free to leave. "Interrogation" means that your statement was not something you blurted out, but said in response to police questioning while they were investigating you. "Valid waiver" means you understood and agreed to give up your rights. At the hearing on the motion, the cop will testify to help the prosecutor prove that you were properly Mirandized and that your waived your rights. Defense can call witnesses, if needed or desired. If you win, DA cannot use statement at trial. Sometimes a ruling in your favor here will cause the DA to dismiss the case or offer a great deal.
Was your statement voluntarily given . . . and, if not, what happens?
In theory, our constitution protects us from being forced to incriminate ourselves. If you give a statement under threat (e.g., physical harm or injury) or promise of leniency, your lawyer may be able to establish that your statement was involuntary. This is similar to Miranda, but not identical. You can have a violation of one without the other. Your lawyer will file a motion to exclude the statement as involuntary. The judge will hear evidence and the DA will have the burden of showing that the statement was voluntary. The judge will make an initial determination as to whether the statement was voluntary. If she rules that it was involuntary, the statement cannot be used at trial. But - here's a critical difference from a Miranda motion - if the judge rules it was voluntary, it will be admitted, but the jury ultimately decides whether the statement was voluntary. If involuntary, they must disregard it. Your lawyer will need to request a specific jury instruction on voluntariness.
The cop is lying . . . I never said that . . . what can be done?
It is very common for a police report to include references to statements that, according to the defendant and witnesses, are not entirely accurate. And the statement only gets worse by the time trial rolls around. A good trial lawyer will deal with these statements early and on several fronts. The lawyer will look for ways to prove the falsity of the statement, to lock the cop into a less incriminating version early on (at preliminary hearing or motion hearing), to give the cop many opportunities to provide inconsistent statements, to show that the statement in the police report is the cop's interpretation of what you said - not your words, and to show how easy it would have been for the cop to just let you speak in your own words. A good trial lawyer will also make sure that the jury understands all the reason why they should not believe the cop's version of your statement and will get the court to instruct the jury to view your incriminating oral statement with much caution.
I lied when I confess . . . what can be done?
Sometimes the cops do get a confession on tape or written in your own hand. If you can't get it suppressed as a Miranda violation (see Step 5) or involuntary (see Step 6), your lawyer will need to educate the jurors about facts which contributed to you giving a false confession and the research behind false confessions. Naturally, your lawyer will want to establish facts that undermine the believability of your statement. In those cases, where your false confession was NOT beaten out of you, is important that your lawyer explain to the jurors - using the research, expert testimony and special jury instructions - why it is you would falsely admit to something you did not do. Without this, most jurors would assume that you would not false confess.
Next time, do yourself and your lawyer a favor . . . NEVER talk to the police
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