When Should You Plead Guilty?

I had an individual ask me today about a real dilemma he had, that he, unfortunately, solved through his own ignorance and laziness. He was stopped by an officer for a broken taillight, late at night. As is the norm for most nighttime stops, the man was given the roadside sobriety tests. He failed. He was then taken into jail, and blew in the breathalyzer. He decided to stay the night in jail and in the morning was brought to court. Before talking to the judge, the prosecutor showed the man the results of his breathalyzer. He blew a .09, and he plead guilty to Driving Under the Influence.

Now, I understand, you’re scared, you’re tired from spending the night on a cot, and that judge looks awful intimidating to be someone’s grandmother. But do yourself a favor: when they ask how do you plead, ALWAYS ALWAYS ALWAYS  answer , “not guilty.”

You can change your “not guilty” plea at any time. You’re even expected to plead not guilty at that first hearing.

You basically can’t change your “guilty” plea. You have to show, in short, mental incompetence. Either you’re still drunk or high, you don’t speak English, you have an IQ so low that you can’t understand what you’re doing, or something similar. And when you can change your guilty plea, it has to be done in a very short time. Usually ten days.

This individual had no mental handicap. He spoke English. And he waited twelve days before calling me. He is stuck with his guilty plea, even though he had a good chance of getting off. Now, the only options open to him are trying to get a lighter sentence, and trying to expunge his record (because now he has one).

So when should you plead guilty? Certainly not at your first hearing, and maybe never. At the very least, talk to a lawyer before you plead. Talk to multiple lawyers if that helps you. Talk to your friends, and examine all of the evidence the government has against you. Don’t give up your right to due process.

Eyewitness Identification

Eyewitness identification of a defendant as the perpetrator of a crime is subject to scrutiny by the court, but that does not necessarily implicate constitutional protections. Let’s break it down in simple terms. There are two situations where identification is an issue: where the witness identifies the person on their own, without a police staging of suspects, and then where there is a police staging of suspect. Each situation triggers a different issue.

When the Witness comes forward on his/her own

Let’s set the stage: Jane Doe witnesses a person breaking  into her house, she recognizes that person as her neighbor. She calls the police and tells them to come to her home and when they get there she points them in the direction of her neighbor. Joe Schmoe is arrested based on her identification and goes to trial.

When the witness identifies a suspect on his or her own, the issue is one of credibility. In this situation, the jury gets to decide whether the identification is correct and how much weight to give that eyewitness’s identification. The witness’s testimony is cross examined by the defendant, and, as is described in the confrontation clause blog post, the defendant attempts to put the jury in doubt as to the witness’s credibility.

For example, an attorney might say, “Ms. Doe, isn’t it true that you’ve hated Mr. Schmoe since he accidentally chopped off the top of your prized peony with his lawn mower?” or “Ms. Doe, isn’t it true that you have extraordinarily bad eyesight and you weren’t wearing your glasses?” This cross examination acts as a safeguard; the defendant can show the jury that the eyewitness is not reliable.

In the end though, when the eyewitness identifies the person on their own, without police assistance, the issue is entirely up to the jury as to whether the person got the identification right.         The judge has no right to preview the issue and prevent the testimony, even if the eyewitness is completely blind and deaf.

When the Police Use Identification Procedure

Let’s give a new example: Victor Vitim is robbed at gunpoint. He saw the person’s face, and gives a description to the police, but he does not know the suspect by name. The police arrest Danny Defendant, who vaguely fits Victor’s description. Then they set up a line-up and Victor identifies Danny as the person who robbed him. Danny goes to trial.

When the police are involved in getting the identification of the accused, the protection for the defendant becomes a two-step question: was the identification tainted by police arrangement, and did the jury find the eyewitness credible. When the government is involved in identification, the courts must ensure that the defendant’s due process was protected.

Police arranged identification procedures cannot be suggestive or unnecessary. Suggestive circumstances occur when the defendant is the only person who even comes close to fitting a physical description, for example. Unnecessary circumstances occur when the eyewitness says he or she saw nothing, and yet the police insist on getting identification from the witness, for example. Either situation, alone, would be enough to cast doubt on the due process protections given to the defendant.

However, being suggestive or unnecessary is not enough to violate due process sufficiently to get the identification suppressed. If the identification was shown to be unnecessary or suggestive, the court then looks at the facts around the case, and make a determination of whether the police conduct created a “substantial likelihood of misidentification.” The process must have been (1) suggestive or unnecessary, AND (2) gives a substantial likelihood of misidentification.

Where indication that the witness could make an accurate identification are outweighed by the police’s corrupting effect, then the identification should be suppressed.

If that standard cannot be met, the issue continues to trial where the jury gets to make the same credibility determination as was described above. The attorney for the defendant may question the witness on the police’s conduct

What is a Preliminary Hearing?

If you or someone you know has recently been charged with a crime, they will be scheduled for a “preliminary hearing.” The words sound just like what they mean; a meeting with the judge, your attorney, and the prosecutor to determine if, before anything else, there is enough evidence to even cast reasonable suspicion on the accused. This hearing a crucial first step in criminal procedure, and takes place even before the first motion is filed.

A preliminary hearing is an evidentiary hearing, at which the prosecutor shows the judge or magistrate all of the evidence he or she has against the accused. The preliminary hearing does not involve a jury, and evidence that is admitted in the preliminary hearing may be objectionable and excluded at trial itself.

The purpose of a preliminary hearing is to determine whether there is any reason to believe that a crime was committed, and that the accused may have been the one who committed that crime. This is the time when a good attorney may be able to help the accused. A good attorney should look for flaws in the prosecutor’s progression of the crime, the evidence the prosecutor has of the commission of a crime, and the manner in which the prosecutor acts so that the attorney can determine if a plea bargain may be the best option for the accused.

A preliminary hearing is also a good testing ground for you to see how the attorney you have hired works. If the attorney takes the hearing seriously, and is diligent in his defense even at the preliminary hearing, then you have an attorney who, at the very least, is going to try hard to help you. If your attorney does not seem to be taking the hearing seriously or is unprepared, you may wish to consider another attorney before you get too far into the case. Some attorneys do not utilize opportunities to attack the case at the preliminary hearing, and you need to keep an eye out for this lazy kind of lawyering.

If you have an impending preliminary hearing, don’t wait until you get to court and hear from the judge that you’re headed to trial before hiring an attorney. Preliminary hearings are important, and are stressful for an accused person. Do not try to handle it alone: you deserve every opportunity for a great defense.