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Tips From an Ex-Prosecutor - Lessons on Criminal Defense
For 3 ½ years I served as an Assistant Commonwealth’s Attorney, prosecuting people for crimes such as burning a child with a light bulb, rape, and murder. I went to trial over fifteen times during that period and had a measurable record of success. Now, I practice in the world of criminal defense – protecting the rights of the accused and making sure the government does not overstep its bounds. I have clients in both state and federal courts, and I have been appointed to the Federal Criminal Justice Act Panel. Here are some things I have learned:
- DO NOT TALK TO THE POLICE . . . at least not without representation! If you think that in any way talking to a cop is going to help your situation, ask for your attorney to be present during the discussion.
- You do not have to consent to a search. It is true that the police may get a warrant and search your property anyway, but make them follow the proper protocol. If they mess up, your attorney may be able to get the evidence obtained from the search thrown out of court. By consenting to a search you are just waiving your rights, and that is not generally a good thing.
- Do not confess on the jail telephone or to your cellmate. (Ideally, don’t confess to anyone at all before your attorney gives you the “ok.”) The government is probably going to find out about it.
- When the police encourage you to talk because they want to help you, think twice. You are most likely being recorded (they may have cameras on their shirts, sunglasses, vehicles, etc.). All they want is for you to confess, them to get the confession recorded, and a gift-wrapped criminal conviction presented to the prosecutor.
- The police do not always have to read you your Miranda rights. You are only entitled to a Miranda warning when you are both (a) in custody, and (b) subject to interrogation. For example, if you are standing in your front doorway answering questions from the police, you are probably not entitled to the Miranda warning because you are not in custody. Therefore, your statements are not going to be thrown out of court based on the police not reading you your rights.
- You do not have to answer every question the police ask you. They are entitled to demand your identifying information. Other than that, there is not much else the law requires you to answer. So, questions like “Have you been drinking?” and “Do you know how fast you were going?” do not have to be answered. In a very polite and respectful manner, you can simply say, “Officer, although I intend to cooperate fully with all lawful requests, I would like to speak with my attorney prior to answering any questions.” That is not the only way to respond to investigational police questioning, but it is one method that may assist you in protecting your rights.
- The federal system and the state system are VERY different. The laws are different, the penalties are different, and the procedures are different. Federal courts have guidelines, departures, variances, 5K1.1 motions, role enhancements, and a slew of other things that make defending a federal case significantly different than if the state were prosecuting your charges. It is important that if you are charged with a federal crime that you talk to a federal criminal defense attorney. Know who you are hiring before you select someone to represent you.
If you are facing federal or state criminal charges or are under investigation, you need to seriously consider talking to an experienced defense attorney to ensure you do not inadvertently waive your rights or give the police extra evidence against you. I offer free consultations for criminal matters, so give me a call if you have any remaining questions or concerns.
Authored by: Megan E. Mersch. Megan has been practicing criminal defense law with the firm of O’Hara, Ruberg, Taylor, Sloan & Sergent since 2013, and she was appointed to the federal public defender panel in 2014.
