Can an attorney can help at the early stages of a criminal investigation?

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I have a close friend who was a detective in downstate New York. Let's call him Rob.

Rob comes up to visit a few times a year, and when he does, inevitably, we end up talking about how police operate, and also how lawyers operate. Rob is a great guy, but we don't usually see eye-to-eye on on topics such as "What constitutes 'probable cause?'" or "When should a suspect be read a Miranda warning?" Rob was up over the Thanksgiving weekend, and after a discussion held at The Cottage Hotel down in Mendon, we did agree on two things.

  1. We agreed that although there is very little a criminal defense attorney can say that will stop a police officer from arresting a suspect, there is a lot a criminal defense attorney can say that will help to make the successful prosecution of that suspect difficult.
  2. We also agreed that one of the more powerful questions a suspect can ask a police officer is, "Am I under arrest, or am I free to go?"

We agreed on the first proposition because if a police officer has enough evidence to make an arrest, it is likely going to happen. Rob told me that he typically has the arrest paperwork drawn up even before a suspect comes to talk to him. A lawyer can bang on their desk all day long, and demand that his client not be arrested, but the cop will not care. However, if the suspect talks to an attorney before going down to the station to meet the police officer, that suspect will almost certainly get some of the most valuable advice an attorney can give, which is, "Don't go to the police station without me, and don't answer any questions while you are there." If the suspect listens to that advice, prosecuting their case will become much, much more difficult for law enforcement. Rob knows that attorneys "just complicate things." It's true. We do complicate things (for police and prosecutors). If you are charged with a crime, or if a police officer is telling you that you need to come meet him so that you can avoid being arrested at work, you definitely need to call a defense attorney so that we can "complicate" your case and help you avoid a conviction.

Rob and I also agreed that (for police) the question, "Am I under arrest, or am I free to go?" is a big pain in the ass. A police officer is almost certainly going to answer by saying that you are not under arrest yet, but you are not free to go. So why is it a pain in the ass? Because if you are not free to go, the police officer should be reading you your Miranda warnings before questioning you, and once people are reminded of their right to remain silent, and of their right to have an attorney present, they typically want to enforce those rights. This is a pain for police. Why? Because 90% or more of all convictions are made with the assistance of a sworn statement (a confession) from the suspect. Without that confession, it becomes much, much easier to defend a person who is charged with a crime. So, if a police officer and a defense attorney both agree that talking to police doesn't typically end well for suspects, why would you do it?

If you need a criminal defense lawyer near Rochester or Geneseo, whether it is for a DWI or a Penal Law charge, call The Militello Law Firm. We want to hear your side of the story, and we want to help. The best way for us to help you on criminal cases is to get started as soon as possible, so call today. Our number is (585) 485-0025.

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Militello Law Firm, PLLC
2480 Browncroft Blvd.
Rochester, NY 14625

1 University Drive
Geneseo, NY 14454

(585) 485-0025
Fax: (585) 286-3128