ARTICLE FOR DECEMBER 2006: THE BIG LIE
Something happened this month that gave me pause to
reflect back on the basics of criminal defense. I decided that maybe it was time
to review some basic do's and don'ts regarding telling the truth to your lawyer.
Fortunately this situation doesn't occur very often, so it is real easy to
assume that everyone knows that lying to your lawyer is stupid. Well I was
wrong, there are still people out there who think it is perfectly alright to
make up stories and try to pass them off as truth. The reason they do this is
sheer arrogance and stupidity. Some people think that they are so smart and so
clever that they can concoct a tale that will withstand the most challenging
cross-examination. For any of you that think like that let me dissuade you from
thinking that way.
Personally I
think that if I don't know what the truth is, I am at a distinct
disadvantage. That doesn't mean that everyone agrees with me. To be honest there
are two schools of thought on this point among attorneys. One school says that
they don't want to know what the truth is. They feel that if they don't know
what the truth is, they can take advantage of asserting certain things as true
when in fact they don't know if the thing is true or not.
The other school
of thought wants to know the truth because it enables the attorney to give you
very accurate advice and allows the attorney to know what areas not to go
into. It also prevents the attorney from allowing his or her client from
committing perjury. I believe in the later school of thought. While it somewhat limits what I
can assert as true, it also prevents me from accidentally misrepresenting a fact
as true when in reality it may not be true. I think that not knowing the truth severely
hampers an attorneys ability to advise his or her client without running afoul
of ethical considerations.
Let me give you
two examples of what I am talking about. Assume that a client has assaulted a
person and the client denies the assault, so the attorney doesn't know the
truth. If the police asks if the client
is willing to take a polygraph (lie detector) test, the attorney may agree to do
so. If he or she does, the client will probably fail the test, which will
highlight the fact that the client is lying. It will also make the attorney look
foolish. Another example would be if in the
same case the Police requested a DNA sample of the client to compare with a
sample taken from the victim. If the samples match, the client's goose is
cooked.
A client should be
aware that a lie is the
hardest thing to carry off, because it isn't the truth. People who lie do so because
they fear the truth. They have done something wrong and don't want to face the
consequences. I can understand not wanting to get caught for something stupid
that you may have done. What I do not understand is people who make things
worse by lying to the one person who is trying to help them. This places
you at a distinct disadvantage because your attorney doesn't have a clue what is
real and what isn't. Another type of person simply lives in a parallel reality
and really believes their lies. It is not always clear whether or not the really
believe their lies, so the possibility exists that they may be able to pass a
polygraph test.
This problem has
it's roots in the concept that most criminals convict themselves out of their
own mouths. It doesn't take brilliant police work, it only takes persistence and
an ability to remember what you said. The truth, on the other hand,
doesn't require any mental gymnastics. Most often the truth is fairly straight
forward, while most liars tend to create their deceptions with a web of unnecessary
factoids that overly complicate the story. Each factoid gives the police one
additional fact to check out, the more facts, the more chance to trip you up.
Why? because if the factoid isn't real it won't check out. If it doesn't check
out the rest of the story starts to unravel. Eventually you cop out to the
truth.
If you are guilty
of doing something stupid do yourself a favor and don't lie to your attorney.
Because if the police are investigating the case, and you are a "person of
interest," they will invite you down to the police station for a little
chat. Unless they are going to arrest you anyway, you are better off declining
the invitation. You have a right under the fifth amendment to the United States
Constitution to remain silent, you do not have to talk to them. So use your
rights to the fullest extent and keep your piehole closed. The reality is that
you will not be able to talk yourself out of trouble by lying, you will only talk
yourself into trouble.
If they think you
may be involved in a case, they will have already marshaled a parade of facts
that they believe make you look guilty. They want to see what your story is, so they
can compare it to the known facts of the case. If your story doesn't check out, then you have drawn
attention to yourself as the probable perpetrator. If you say nothing, they have
nothing from you to check. No story, no facts, no alibi, no nothing. It doesn't
mean that they will stop thinking that you are probably guilty. In fact the mere
fact that you refuse to talk to them will make them believe that you are more
likely guilty. Which is why only totally innocent people should ever talk to the
police. Guilty people should keep their big fat mouths closed, but they usually
don't. Which is why they are usually convicted. Get it?
You are better off
being thought of as a criminal, than to open your mouth and remove all doubt.
The fact that the police may think that you are more likely than not guilty,
doesn't mean that they have enough evidence to prove it. They have to prove,
beyond a reasonable doubt, that you are guilty. You are under no obligation to
help them out. You have an absolute right to sit there and say nothing. In most
cases this is the best course of action, as it prevents them from learning
anything from you. After all, a jury is most likely to believe any admission
that you may make as true. So if you say that you did it, why would a jury not
think that you are?
Without trying to
sound like a know-it-all, I still think that the best thing you can do is not to
say anything. The second thing that you should do is to retain a criminal
defense lawyer and consult him or her as to your next move. Sometimes talking to
the police is beneficial and sometimes it isn't. Only an experienced criminal
defense lawyer can advise you whether or not to talk to the police. As a general
rule, you should never try and do this yourself.
In another case I
have discovered a "victim" that doesn't know or care what the truth is. They are
making false accusations to the police in an attempt to get the police to
prosecute this individual. To say this type of activity is wrong is an
understatement. In conclusion, if you lie to your lawyer, you will undoubtedly
suffer the consequences of your actions. You will have no one to blame but
yourself for the outcome, so don't do it.
Back to Top | 
THE LAW
OFFICES
OF
