A word of advice from one of our Texas prosecutors based on one of the recurring blunders that he sees defense attorneys make:
My desk phone rings. It’s the receptionist calling to tell me that a defense attorney is here to see me about a felony indictment his client just received. The indictment came down last week and there is no trial scheduled yet, so I know he’s here to talk about an early dispo (pre-trial diversion, perhaps).
The defense attorney has had the “pregame” interview with his client and believes the client has told him everything about the case. The defense attorney has spotted two evidentiary issues during the initial interview and after further review, he feels he’s got a solid defense to walk into my office with and argue for a good deal - a really good deal.
Not only is my case not that great, so the defense attorney believes, but his defendant is clean. No prior criminal history. At least, according to his client.
After pleasantries, he lays out his defense and I don’t attempt a retort. Until he mentions “and he’s got a clean record, too.” Immediately, my face lights up with that “ah ha” look, revealing that I obviously know something he doesn’t.
I’ve been there many times. Sitting across from me as I flip through the file, several defense attorneys have discovered that their clients had been less than truthful with them about their criminal history. Maybe it’s only a misdemeanor or maybe it’s a pen trip. Either way, you’ve got to be careful when handling this particular area of the case.
Of course, I am always going to have access to your client’s criminal history; both state and national indices. So, when you waltz in operating on this false assumption, congratulations! You’ve just made my day!
I’ve caught you in a lie. Okay, it’s not really a lie on your part (or maybe it is), but now I know that either (1) you didn’t bother to ask your client about his criminal history and assumed he was clean, or (2) your client outright lied to you. Either way, I like my chances in this case with you as my opposition. By failing to check your facts, you’ve lost credibility with me. And your client has lost credibility because I pretty much know your knowledge was based on his lie.
My advice (take it or leave it) - Don’t rely on your client’s word when dealing with the prosecutor. I've got the upper hand until…get ready…ready? Until you ask the me (NOT THE CLIENT) what the criminal history is. Start with it when dealing with the prosecution. Get it out of the way. Pull that band-aid! Then? Maneuver from there. No history? Great way to start. Lots of history? It shows me you’re not hiding from anything and prevents you from operating on a false assumption.
