What to Avoid While a Criminal Case Is Pending

Interviewer: What are some of the most common ways that people unintentionally incriminate themselves or hurt their pending upcoming cases?

You Must Avoid Discussing the Details of Your Case with Anyone Other than Your Attorney

Paul: The most common way that a person will damage their own defense is simply by talking about their case. It is absolutely, positively human nature to want to explain yourself. It is absolutely, positively human nature to want people to agree with you and give you support.

It is so understandable that people will go tell someone, “Hey, here’s what happened, here’s how I got involved. Do you think I have anything to worry about?” because they want to hear people say, “Oh, no, I don’t think you have anything to worry about at all.”

Exercise Your Right to Remain Silent: This Warning Applies When Speaking with Law Enforcement           

That type of desire, which is very natural, is a defendant’s worst enemy, particularly when law enforcement is in the room. If there’s a detective there questioning this person, the detective will often tell the person, and “If you help me out I might be able to help you out with the prosecutor.” Now all of a sudden this person is making a detailed statement that they ordinarily would never have imagined they would make to law enforcement.

Any Information You Have about a Criminal Case May Be Used as a Negotiating Tool by Your Attorney

So never, ever make any statements to law enforcement. Always meet with the lawyer first. Your lawyer will be able to tell you whether or not the information you have could or should be of value to the prosecutor, and your lawyer is the best person to negotiate any benefit to be had from providing that information.

If my client tells everything they know to the detective assigned to the case; that detective hands that information right to the prosecutor. Now the prosecutor has very little motivation to negotiate with me for any benefit. The prosecutor will say, “Mr. Cramm, why should I give your client such-and-so benefit for their information? I already have their information from my detective.”

You Will Only Be Advised of Your Miranda Rights When You Are in Police Custody

Interviewer: When it comes to Miranda Rights, when clients should or should not be speaking? How and when do Miranda Rights come into play when confronted by the police, either roadside or in their police station?

Always Consult with an Attorney before Making Statements to the Police

Paul: My advice to my clients is not to answer law enforcement questions regardless of whether they have been advised of their Miranda Rights. Law enforcement is only obligated to advise someone of their Miranda Rights if that person is deemed by law to be in custody. Clearly, when a federal agent contacts someone on the telephone, a telephone call by its very definition means you’re not in custody. You’re just talking on the phone.

If the agents stop by your office and they say, “Do you have a few minutes? Can we talk with you?” you’re not in custody. I certainly think that people should exercise their right to remain silent, regardless of whether or not the law enforcement officer has made the decision to do a Miranda advisory.

Interviewer: So Miranda Rights don’t even have to be read to the client. Any individual is free to say, “I want to get advice from my attorney.”

Paul: Absolutely. A person can invoke their right to remain silent and can invoke their right to have a lawyer present, regardless of whether or not law enforcement has advised them of that right. You can invoke immediately, “I’m not talking about this situation. I have a lawyer and I’ve been told not to answer any questions.” You are free to declare that at the very beginning of any interview with the police.