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Should you talk to the prosecutor? Six ways to get in trouble.

You’ve been charged with a crime. Now, you have a voicemail. The prosecutor called you and left a message. Should you return that call? Should you talk to the prosecutor?

Perhaps, at the time of the arrest or citation, the officer even told you, “Don’t worry, the prosecutor will give you a call. No big deal.” A couple points here. I am aware of two jurisdictions (court systems) in Wyoming where it’s common for the prosecutor to call criminal defendants. However, in most jurisdictions, the prosecutor will not call you and doesn’t want to talk to you. All lawyers have legal ethics that govern talking to non-lawyers about their cases. If the prosecutor says the wrong thing, or even if the prosecutor says the right thing, but you hear the wrong thing (hey, it’s not like legal jargon is confusing), they can get in trouble. But, let’s assume the prosecutor did give you a call. Should you talk to them? Should you return the call?

Here are five ways that can go badly for you.

  1. You give them information they don’t know. Most of us were brought up to cooperate with authority figures. In family, school, and the workplace, we’re told that if we’re truthful, cooperate, and own up to our mistakes, all will be forgiven.The law isn’t like that. Don’t try to get brownie points without knowing the game being played around you. If you admit to something—even if it seems obvious—you may be giving the prosecutor the ammunition he needs to sink you. For example, say you admit that you were driving the car, but law enforcement never saw you in the vehicle. Now the prosecutor knows you were driving.
  2. You agree to something without knowing the consequences. Say all you’ve got is a pink citation in your hand. The prosecutor says just pay a fine and it’s done. You don’t ever need to come back to Wyoming. That doesn’t sound too bad and you pay the fine. Now, that citation is likely a criminal citation. You’ve got a criminal conviction on your record, which you’re not even really aware of. How does that look when you apply for a job, apartment, financial aid, security clearance, or loan?
  3. You agree to something you don’t understand. This is similar to point number 2. Perhaps you think that you’re getting a good deal. You get probation and then the charge gets dismissed. How long are you on probation? Do you have a probation officer? How many times will have to take off work and drive to a probation office in another city to pee in a cup? Maybe that is a good deal, but you don’t necessarily know that going in.
  4. You plead guilty to something that they can’t prove. I don’t care if you “did it.” That’s not the point. You have rights under the United States Constitution. Sometimes the government violates those rights. Sometimes that violation is obvious. Sometimes it’s not. There are incredibly specific rules about when an officer can pull over your vehicle. About when an officer can detain you. About what kinds of questions an officer can ask you (hopefully, you read my post about what to say to the cops). About whether your consent to a search was “voluntary.” If the government has violated your rights, you should get the case dismissed. Occasionally, a criminal defense attorney can talk a prosecutor into dismissing a case. More than occasionally, a criminal defense attorney can bring a motion before the judge to get the case thrown out. More often than that, a criminal defense attorney can raise a legal problem with the case and get you a better deal. It all depends on the facts, the law, and what the prosecutor can prove.
  5. Some other factor you don’t know about could be used in negotiation. Negotiations with the prosecutor take into account factors you may not be aware of. For instance, court calendars, officer availability, judicial temperament all can influence negotiation. These are the kinds of things you learn through repeated interactions with law enforcement, prosecutors and the Court. You don’t know what cards to play, if you haven’t seen the deck before.
  6. A go-between helps you explore options. Sometimes, you want to talk about hypotheticals with the prosecutor. For example, you may want to say, what if X were true, would you do Y? If you ask that question, be prepared for the prosecutor to cross-examine you about X. It’s like you already admitted to X. If your attorney says, what if X were true, it’s a different situation. Settlement communications between attorneys are confidential and can’t be used against the client.
Should you return that phone call? Or should you call a lawyer? Clearly, I’ve got a vested interesting in you calling a lawyer. But, just like my web site says, “free consultation.” I’ll talk to you for 15 minutes about your case (or however long). I do that for a couple reasons: One, I don’t want you to make a mistake. Two, I like making sure the government proves its case. Three, I think you should know your rights. Image source: Wikipedia


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