Although I believe the system can be unfair, defendant’s do not do themselves any favors in ensuring themselves a fair shake. One thing is for sure, a defendant without guidance, whether guilty or innocent, can really make a mess of his case. And if you are a defendant accused of domestic violence, or any other crime, I hope this advise will keep you from digging yourself a deeper hole.
1. If you are in custody, stay off the phones!
If you didn’t already know it, all phone calls to and from the jail are recorded. And if you are being held in the Ada County Jail, no public visits are allowed anymore. All visits are done over the internet, and you can bet that those visits are recorded as well. You can imagine what kind of problems this can cause for your case. You can bet that someone is listening to those phone calls, and if your case goes to trial, it is guaranteed that someone will comb through your jail calls looking for anything to use against you at your jury trial.
Weakening your case at trial may be the least of your problems if you don’t stay off the phones. See rule #3 about what could happen if you speak to someone who could potentially be a witness, and rule #2 about what could happen if you are caught speaking to a protected party.
2. If there is a no contact order (i.e. protection order, or restraining order) in place, do not contact the protected party!
Whether you are in jail, or out of custody, resist the temptation of contacting the protected party. Often this is more difficult than it sounds. More often than not, the protected party is someone close to you. A friend, business partner, or a significant other. Consequently you will have other friends, a business, children, and even a home in common. You may believe that there is no way you will get caught, and you will violate the no contact order. The consequence for violating a no contact order is a new criminal charge, and if you do it enough times it could even be filed as a felony charge. And getting a new criminal charge can cause you problems in resolving the criminal charge you already are dealing with.
3. Do not attempt to talk ANY witnesses about their testimony, leave that to your attorney.
Speaking to potential witnesses can cause you problems in more ways than one. First, speaking to a witness is going to come up at a trial. If the witness testifies in you favor, the prosecutor is going to ask them about what type of contact they have had with you, and what details of the case you discussed. The fact that you and the witness spoke about the case prior to coming to trial may cause the jury to distrust the witness’s testimony, and consequently may cause you to lose the trial.
Not only can speaking to witnesses cause you to lose your trial, but it can also result in more criminal charges. Idaho has a criminal charge called “Witness Intimidation”. But don’t be fooled by it’s title, you don’t actually have to “intimidate” the witness to be found guilty of the charge. In fact, simply influencing another witness to testify a certain way could result in you being convicted of Felony Witness Intimidation. I have seen defendants beat the charges that they were originally charged with, only to be convicted of the Witness Intimidation charge.
4. Do not speak with ANYONE about your case, except of course your attorney.
Speaking to anyone about your case only creates more witnesses for the State. It doesn’t create more witnesses for you, because consistent statements are not admissible as evidence at a trial. So you can tell 100 people the same story that you are going to tell at trial, but tough luck, you can’t bring them to court to tell the jury that. Inconsistent statements are allowed though, and so if a witness claims you told them something different than you are saying to the jury now, that can be used against you at court to impeach your testimony. You may say, ” but that is hearsay!” Unfortunately, all of a defendant’s hearsay statements are considered an exception to the rule. So the hearsay rule isn’t going to keep those statements out.
5. Speak to a criminal defense attorney BEFORE speaking to any law enforcement official or prosecutor about your case.
No matter how smart you may think you are, nothing you say to the police is going to help you, and will very likely hurt your case. This is true whether you are innocent or guilty. You may be completely innocent of the charges, but ways you act, and things you say, can be twisted and construed unfavorably against you. And as was said before, consistent statements will not be allowed as evidence in court. So if you say something to the police that is consistent with what you are telling the jury, that evidence will not be presented to the jury. However, if you say something inconsistent, then that evidence can be used against you. It is a lose-lose situation for you. Speak to an attorney first, before even thinking of speaking to a police officer.
Similarly, do not speak with a prosecutor without an attorney present. You can legally represent yourself. It is called Pro se representation. However, as it is unwise to speak to the police alone, it is also unwise to speak to a prosecutor alone. It is even more unwise to attempt to represent yourself in court. Even criminal defense attorneys who are accused of crimes hire an attorney to represent them. Similarly Police Officers accused of crimes hire defense attorneys to represent them.