Why should I get an attorney even though I haven’t been criminally charged yet?
We are frequently asked, “I have been talked to by the police and I might be charged criminally, should I get an attorney now or wait until I am charged?” The answer is do not wait! Get a skilled attorney, versed in criminal law, onboard as soon as possible. There are many reasons to do so, among them are:
- Investigation. It is critical that an investigation get done as soon as possible. Investigation might include:
- Interviewing and preserving witness statements while the witnesses are still available and while the incident is still fresh in their mind.
- Preserving video or photographic evidence that might be stored on devices that will eventually be overwritten over time. This is especially critical if there are cameras that show the incident at a business, intersection, or public building. Having that attorney’s investigator go to the scene of the alleged crime and take photographs so the scene can be preserved if physical characteristics of the scene are later needed for a criminal defense. This also protects against changes to the location if charges are not immediately forthcoming and the configuration of the location changes.
- Having the investigator check social media to see if any statements are being made by alleged victims or witnesses while the matter is still in the public record and before it might be pulled down.
- Having the investigator interview the alleged victim before the State decides to charge the case and the State tells the victim that they should not talk to an investigator.
- It is also helpful to do things that might be helpful in negotiations and/or settlement of a case. Examples of this might include:
- If the case deals with drug abuse or drunk driving, an alcohol and drug assessment can be done and follow through in treatment can be entered into prior to criminal charges being issued. If criminal charges are delayed, but in the meantime the accused goes through drug and/or alcohol treatment, becomes clean and sober, and a test can indicate no use of drugs or alcohol in their system, this can be very helpful in negotiating an outcome of a case.
- If the case has to deal with domestic abuse, the alleged abuser can get into domestic abuse counseling. Again, this would be very helpful in negotiating the case and possibly positively affecting the outcome.
- If the case deals with criminal damage to property or other property damage cases, the accused can start putting money aside for restitution claims. There are many cases where if the restitution can be paid upfront, the outcome might be a misdemeanor instead of a felony or civil ordinance violation instead of a misdemeanor.
- If it is a sexual assault or sexually related matter, getting counseling and having a psychosexual evaluation done can be very helpful as well in resolution of the matter.
We have found through the years that retaining an attorney immediately, something we call “advice before charging representation,” can greatly help avoid negative consequences. Whether it might help with making sure charges are not filed at all or “softening the blow” later, we have found that early attention to the matter can yield big dividends. More than one case has been won by having witnesses interviewed early, preserving evidence that might have otherwise been destroyed (e.g., video) and getting witness statements that were given by parties that witnessed the incident but were not interviewed by the police department. It is better to over prepare at this point than under prepare. Often, there is no way to go back and get the evidence that has now been lost or get statements that are no longer obtainable. Taking action early might make the difference between a great result or an unfortunate ending.