A Family’s Guide to Working With a Criminal Defense Lawyer
When a member of your family has been arrested or charged with a crime it can be a challenging time for everyone. It is emotional. It is confusing. You may be angry. It can certainly be scary. Hiring an experienced criminal defense attorney who is empathetic and patient is the critical first step in obtaining the best outcome. Ideally, the family will be able to work together with the attorney and his or her team to benefit the accused person. Families have an important role to play, and when you understand your role you can be a powerful part of the team defending your loved one.
What Do You Need to Know Right Now?
1. No Judgment.
You and your family will not be judged for your loved one’s circumstances. You need to feel safe and supported, and that is part of what a good defense lawyer and his staff will provide. Criminal defense lawyers see people on their worst days. They are used to it. No matter how “bad” you think your case is, it is very likely that the defense lawyer and his staff have handled cases that were much “worse”. They will not judge you or your family.
2. It is important to ask questions and be informed.
For everyone to work together in the interest of your loved one who has been accused, communication is critical. It is likely that your family has never been involved with the criminal system. Even if you have, it can be a confusing, scary experience. The language is foreign, the process is foreign, and it is not at all like what you have seen on TV. You will have questions. You will hear words you have not heard before and concepts you aren’t familiar with. It is OK to ask questions when you don’t understand what is being said. You SHOULD ask questions. A good criminal defense lawyer will welcome your questions, because they will want to maximize communication and understanding.
3. The family is not the client.
The lawyer represents the person who has been accused. He or she is the only client. It doesn’t matter who is paying the lawyer’s fee, or who is the family “leader”. Your loved one is the client and everything the lawyer does must support the best interests, and the wishes, of the client.
Sometimes there is conflict between what the family wants and what the client wants. The lawyer has an ethical duty to work for and honor the wishes of the accused, even if the family thinks there is a better course of action. This means that when the wishes of the family conflict with the wishes of the client, it is the client’s wishes the lawyer must follow. This is an absolute and unwavering duty for the lawyer, and it is an important concept to understand. This does not mean that the lawyer does not want to hear what the family thinks and desires. It is important that you share your thoughts and feelings and are heard. Your contributions are valuable. The lawyer may agree with your opinions and desires, and he will be able to speak with and advise the accused, and may try to persuade him or her of the wisdom of your ideas. But in the end, it is the accused who directs the lawyer.
4. Respect the Attorney-Client Privilege and Confidentiality.
The lawyer has an ethical duty to uphold attorney-client privilege and confidentiality. This means that all communications between the accused and the lawyer are private and confidential, and cannot be disclosed by the lawyer even to the family. It is important that everyone understands and respects this duty so that you can work effectively together.
The purpose of the rule is to encourage open and honest communication, so that the lawyer’s representation can be as effective as possible. The privilege covers oral and written communications. The lawyer cannot tell anyone—including parents, siblings, or other family members— what the client has said or disclosed in writing to the lawyer, unless the client gives specific permission.
It is important to note that what the lawyer and family members talk about is not privileged. The lawyer cannot keep secrets from the client. Be aware also that the lawyer may not tell you everything about the case. Your loved one may consent to allow family members to receive some information about the case, but he or she and the lawyer may have very good reasons for limiting the information shared. Those reasons have nothing to do with you, but are related to the defense strategy.
5. Be In It For the Long Haul.
A criminal case may take a long time. Cases usually take many months, and sometimes years, to be resolved. In many cases the passage of time on its own will contribute to obtaining the best outcome. Be aware of this from the outset and set expectations accordingly. Be aware that it may seem that long periods of time go by without any visible progress in the case. This is to be expected. Often there is work going on that you cannot see, and sometimes the lawyer may be waiting for information to be provided by the government, or for a response to a written motion or brief, before taking the next step in the defense plan. Try to be patient and remember that this is a long process, and that much of what is happening is not going to be visible to you.
6. Don’t Compare Your Case With Other Cases.
By all means, share with your lawyer what you have heard or read about other cases, if it is on your mind or you have a question. Lawyers should always be interested in creative solutions and broadening their knowledge. But be aware that the outcome of other cases, and what strategies and tactics worked in other cases, is extremely fact-specific and case-specific.
For a whole host of reasons, what happened in other cases may be irrelevant to your loved one’s case. Most importantly, the facts of each case are unique, and therefore there will always be differences in how the cases proceed and what steps are taken in each. Also, different jurisdictions, such as different states, have different rules and laws that apply to cases that are otherwise somewhat similar. This can mean that what happened in a case in one state may not be possible in another state in a similar case, or the procedure or court rules may look very different.
Remember, too, that we are dealing with human beings. No two defendants are the same. Each is an individual, with a different history, including criminal record and mental health status. Even in the same state, differences between judges and prosecutors can create different outcomes in cases that appear similar.
There are many other reasons why other cases that seem similar may not be. It is ok to ask the lawyer about other cases you have heard of. Be open to the reality that they may not be relevant to your person’s case.
7. Don’t Do Your Own Research.
For similar reasons, it is not a good idea to do research on the internet about your loved one’s charges. It is very easy to get incorrect or irrelevant information that is upsetting, and you don’t want to add to the anxiety and stress you are already feeling. What information you do get must be understood and applied in the context of the case, and that can be much more complex than is apparent online. Ask questions of the lawyer, rather than searching on Google. He or she is the best source of information that is relevant to your case.
8. Be open to Discussing Plea Deals.
There may be a time when the lawyer discusses a possible plea agreement. Sometimes this is frustrating for the family, because you want your person to be innocent. This does not mean that the lawyer does not believe in your loved one. The lawyer has an ethical obligation to convey any plea offer made by the prosecution to the client. If the lawyer recommends that a plea deal be accepted, it is based on his experience and knowledge of the criminal justice system, and his evaluation of the evidence and law in your case.
Remember that you may not know all of the facts about the case, and the lawyer may not be able to tell you all of them. The facts you don’t know might be what make the plea deal the best option. Remember, the lawyer’s duty is to the client.
You may feel that talk of a deal has come out of nowhere, and that can be upsetting when you have been talking about preparing a defense for trial. Your loved one may not wish for the lawyer to speak with you about the specific terms of a plea deal, or even the fact that it has been offered, until a decision has made to accept it, or until negotiations have gotten to an end point.
It may be the lawyer wants to ask you some questions related to a plea deal, and may not be able to tell you specifics about the terms, because of his client’s wishes. Try to be understanding and focus on the information the lawyer needs, and not the fact that he can’t tell you more. Remember, he is working for the best interests of your person.
If the lawyer is able to discuss the terms of a potential plea deal with you, he will want to be sure you understand everything involved in the deal. Ask the lawyer to explain the potential plea deal, and to clarify any aspects of it that you don’t understand. He should be willing to spend time with you doing this, because it is important that your person has the full support of his family and friends.
You may have some valuable input into the terms of any plea agreement or sentence. You’ve been living with your loved one for years and may have important knowledge about him or her, about programs, treatment, and services available in the area, about other options available, that can help in crafting a plea deal or in assisting a court in putting together a favorable sentence. As the family, you may be instrumental in ensuring that your loved one complies with the terms of any plea deal, so your input will be important information for the lawyer to have.
The unfortunate truth is that the criminal justice system isn’t always fair, particularly when it comes to individuals with mental health challenges, substance abuse disorders, or mental disabilities. Keep in mind that, depending on the nature of the charges, a conviction may carry a mandatory minimum sentence, or other requirements or conditions that a judge cannot deviate from even if he or she may want to. The lawyer is looking to get your loved one the best possible outcome in their case and is usually in the best position to know what that entails.
8. Remember that the Lawyer Is Constrained By The Legal System and The Law.
This sounds obvious, but it is easy to forget. We want to believe that the criminal system is focused on “justice” and “fairness” and “truth.” Sadly, those ideas can seem to get swallowed up by rules and laws and procedures. As we have to say sometimes, remember that your attorney is not a magician. He can’t change the rules, or undo things that have happened already. It may seem to you that a charge should be dismissed right away, just based on common sense. And you may be right about that. But the rules of procedure may not provide an opportunity for that to happen right away. Similarly, a prosecutor who seems not to share your common sense assessment may be constrained by his office’s policies, a difficult supervisor, or even information that you and the defense lawyer don’t yet have. It is important to give the attorney the time and space to do his job within the confines of the court.
Sometimes, particularly if your loved one has been suffering from substance abuse disorder, other mental health issues like depression, anxiety, or trauma, or mental disability, by the time your family meets with a defense attorney, you have endured months, years, possibly decades, of misunderstanding from the police, neighbors, schools, employers, and others. Those people haven’t understand the nature of your loved one’s illness or disability and have been unwilling to make accommodations.
When you first meet with the defense lawyer, it may seem that he is heading in the same direction. He may ask questions or focus the discussion on areas that seem obvious to you or even irrelevant to the real problems your person is experiencing. We ask your indulgence. Remember that he is new to your world, and needs time to learn and understand. He also may have certain issues or court events he needs to address under a deadline, such as an impending arraignment, and he may need to focus on certain legal issues relevant to that event. His narrow focus may feel frustrating when your person’s real story is big and compelling.
Resist the urge to make the defense attorney the focus of the anger and resentment for the system that has treated you poorly. He is on your side. The criminal charges may be unfair, but if there is an indictment, the lawyer must deal with the court’s procedures, learn the facts about the case and your loved one, and control collateral damage. Your role is to arm the lawyer with much-needed facts and insight. A family can be a valuable resource so try and be the helpful family as much as possible.
This may be asking the impossible. Your situation may be so frustrating, and you may be so angry, that you cannot but vent your emotions. That’s ok. The lawyer will understand. He’ll let you get it out, and then focus on what he needs from you. If your family works together with each other, and with the lawyer, you will be an effective defense team. The lawyer should show you the same patience he is asking of you.
What Can You Do To Help?
1. Be Part of The Team.
The most important role the family can play in the defense of a criminal case is to support the accused person in a constructive manner. Primary among these is supporting the person’s mental and emotional health. Now is not the time for scolding or punishing; what is needed is support and love.
To obtain the best outcome, the lawyer and client will need to communicate effectively. He will need the client to focus on specific tasks, programs, or treatment. He will need the client to participate positively in the defense effort. It is important that the family focus on and support these efforts.
It may be that the client needs help with transportation for treatment, counseling, or meetings with the lawyer or investigator. He or she may need a place to stay temporarily while the case is going on. He or she will certainly need emotional and moral support to maintain strength and positivity. The family can be an invaluable resource in these areas.
It is equally important that the family not focus on other efforts that are not part of the defense plan. You may have broad goals such as educating the public, judge or prosecutor, passing new laws, or driving social change. Those may be important and laudable goals, but they should wait until after your loved one’s criminal case is finished.
2. Provide information.
In many cases, the family is the best source of critical information for the lawyer and his investigators. If the lawyer asks you to help by providing information, please do your best to provide the information completely and rapidly. Don’t worry about whether you think it will be helpful, or about choosing what parts are important and what are not. You may not know, and the lawyer may not yet know for sure, what information will ultimately be important.
The lawyer might ask for help in obtaining:
• names and contact information for other family members who may be helpful
• names and contact information of medical providers
• family medical or mental health history
• lists of schools or programs attended and locations of those institutions
• employment history and contact information
• housing history
• names and contact information of prior attorneys
• insurance information
If the lawyer asks you for information, provide as much information as possible and let him sort through it and decide what parts are essential. He would rather have too much information than not enough.
3. Designate a point person for communication.
Designating one person to be the main point of contact and conduit for information about the case will be immensely helpful. This does not mean that only one person can speak with the lawyer. Certainly, anyone with questions should feel free to ask. But for information requests, case updates, and the like, it will be most effective and efficient if there is one person
the lawyer can go to who can then disseminate information to others in the family.
Similarly, it may work best if that person communicates questions from the family to minimize confusion and “translation drift.” Sometimes, the lawyer can give the same answer to three people, and each person translates the answer a bit differently and communicates that to the rest of the family. The result is the perception that three different answers have been given. To reiterate, though, this is not to suggest that anyone should have control of information or contact with the lawyer. If you have a question, please ask.
4. Help Your Loved One Dress For Court.
This may seem mundane or trivial. It isn’t. It is amazing how much a defendant’s appearance can help or hurt the outcome of his or her case. Sometimes, clients need some help in knowing what is appropriate dress and grooming for court. Ask the lawyer how your loved one should dress, and help them to do it. If your person doesn’t have appropriate clothes for court, help them to get some. Encourage them to get a haircut and be well-groomed. Raise this issue with the lawyer; he will be glad you did and will appreciate your help. You don’t have to change who the person is. But you can help them make a positive impression by making a respectful appearance.
As a rule, a man should wear at minimum a collared shirt and dress shoes. No jeans or sneakers. A suit is better. Men and women should dress as if they were going to a job interview. If your loved one doesn’t have appropriate court clothes, you can be tremendously helpful to their defense by getting them some. Jewelry should be kept to a minimum.
If your loved one is in jail awaiting the resolution of his or her case, call the facility and ask how you can get “court clothes” delivered. Usually you can bring clothes, including shoes, to the facility and they will hold them for the person until they go to court. The defense lawyer can assist with this.
What Should You NOT Do?
1. Media.
It may be tempting to communicate with the media, especially if you feel your loved one has been wronged in some way. Please resist the temptation. Do not talk with the press at all without the consent of the lawyer. If you do communicate with the press, you should have the lawyer present at all times. If you are approached by the media, do not give a comment. If you are approached by the media, do not react with anger or emotion. Politely decline to comment.
Your loved one’s case may be outrageous. You may feel that it is newsworthy and that the public needs to know about what is going on. Be aware that the media may not care about the case or your person at all, they may be simply interested in a salacious detail. Or they may care, but not for the reasons you would think. The media coverage, in any event, would probably not be sympathetic, despite what you might expect. That is just the reality. Resist the urge to involve the media.
Some jurisdictions have rules about lawyers interacting with the media about ongoing cases. Don’t expect the lawyer to speak with the media, he may not be allowed to. If he does, realize that his comments will be carefully tailored. They may not be as powerful or colorful as you might wish. There is probably a good reason for that. Ask him about what he said, he should be happy to explain.
2. Don’t contact witnesses or alleged victims.
It is understandable to think that “if I could just talk to her...” Unless the lawyer specifically asks you to speak with someone who is involved in the case as a witness or alleged victim, DO NOT. Courts often order defendants not to have contact with witnesses and alleged victims in their case pending trial, and that prohibition extends to communications on the defendant’s behalf by third parties. By contacting a witness or alleged victim yourself, you may jeopardize your loved one’s pretrial release and freedom, or cause them to be charged with witness tampering.
On a more basic level, you are more likely to jeopardize the lawyer’s defense strategy if you contact people on your own. Please don’t, no matter who they are, no matter your prior relationship with them. Your communications may wind up as a prosecution exhibit at the trial. You do not want that.
3. Do Not Contact The Prosecutor Or the Judge.
Similarly, while your intentions are certainly good, you can do irreparable damage to the defense if you contact the prosecutor or judge on your own. You will not change anyone’s mind or opinion of your loved one, nor will you influence the outcome of the case in a good way. Such communications are often viewed as a red flag, suggesting that the people around the defendant are unstable or disrespectful of the Court or process. That would not be helpful, obviously.
Get Help Now.
The family can be a valuable and constructive asset in the defense of a criminal case. Work together with your loved one’s lawyer, keep your eyes on the long-term goal, and you can help create the best outcome in a trying and stressful time.
Ernest Stone has nearly three decades of experience working with families of good people charged with criminal offenses to successfully defend them.
If you or a loved one is facing the possibility of arrest or has been charged with a crime in Massachusetts, having a highly knowledgeable and experienced criminal defense attorney by your side is critical. Contact us today for a free consultation.
Being accused is traumatic. We understand. We will get you through the storm.
Schedule a free case review online or by calling (978) 705-4537.
