These mistakes are so common, they are happening right now as you are reading this sentence. Whether domestic or non-domestic, people being investigated for a battery or assault charge routinely do these five things that can alter their life in a negative was forever. Here are the five most common mistakes people make when being investigated and/or charged with a battery or assault charge.
Talking to the Police
Most people watch movies and shows where crime and cops are common themes. We see the suspect and the “good guys” fight it out, the suspects are beaten, and as the cuffs are being slapped on, we hear the Miranda Warning. You know, the one where you hear the cop saying “you have the right to remain silent, anything you say can be used against you in court, etc.”, right?
Wrong. The police are specifically trained to avoid doing anything that legally requires them to read you your rights. A common scenario after a bar fight or a dispatch on a domestic, is for the police to separate the parties and ask each one to “tell their side of the story.” The officer is trained to be comforting, non-threatening and casual. Technically, this technique as originally used in drug cases and is known as “knock and talk”.
Knock and talk is powerful for two reasons: 1) it flat works, and; 2) because the person questioned is not “in custody” and under a “custodial interrogation”, there is no requirement to read the Miranda Warning. This is why police often specifically say “you are not under arrest” in case after case: if one person questioned in their front yard while their partner is questioned in the kitchen, one or both parties is going to say something that will lead to one of them being arrested.
The proper response when being questioned about an assault or battery allegation is very simple: “I would like to speak to an attorney.” Far too many people fail to realize that the police are professional statement takers with a lot of experience questioning people. You are not a professional statement maker. Do not try to talk yourself out of the ride only to ignorantly talk yourself into a conviction.
There is an old saying, that a lawyer who represents them self has a fool for a client. If a trained, Florida Bar member with a doctorate in law is a fool, what would that make you?
Amazingly, people are stumbling around in court on their own for three main reasons:
- “My friends said . . . “
- “The Internet said . . . “
- Fear of the legal fee for competent representation
This has a lot to do with why almost one third of the population of America has some form of criminal history. First offenders are the most vulnerable because they don’t know what they don’t know. And ignorance is not bliss. Consider:
People who self-represent will never get the best deal. The State Attorney sees them coming and is prepared to sell you a bad plea bargain by making it sound like winning the lottery. Since you do not know any better, this is easier than it sounds. Common techniques include distracting you with unfamiliar phrases like “Adjudication Withheld” and “diversion program”.
Adjudication withheld is a legal term of art that is very misleading: true, if you are charged with a battery or assault and it is domestic, you will not be convicted if you take a deal with “adjudication (a find that you are guilty) withheld”. What that nice State Attorney in the courtroom “forgot” to tell you: it will be treated like a conviction and bar you from certain employment and business opportunities for a lifetime under a separate section of Florida law and nationwide with a specific federal law.
Worse, this is a minor version of “courthouse surprise”: many people find out the hard way that they are going to jail for ten, twenty, thirty or more days at the last moment, while they are literally standing in front of the judge with no warning.
“Do I need a lawyer if she/he is going to drop the charges?”
Newsflash: the complaining witness cannot drop the charges against you. Only the State of Florida can formally charge someone with a crime and prosecute them, and only the State of Florida – not the Complainant (often erroneously referred to as “the victim” by the State prosecutor) – can drop the charges.
In fact, the State is hoping the Complainant will high tail it to the State Attorney’s Office before you hire a lawyer. Even better, when the Complainant goes to the State Attorney’s Office they have a chance to lock in the testimony with implied threats and/or use the meeting to indirectly sell an unfavorable plea bargain to an unsuspecting defendant. After all, their job is to keep conviction rates high so that the elected State Attorney can campaign for re-election as “tough on crime”. This is how Assistant State Attorneys keep their jobs: keep conviction rates high and punishments as severe as they can get away with.
This is a case killer at any stage of the prosecution for an assault or battery charge, whether felony or misdemeanor. This is most usually found when there has been too much Internet research about the law, and not enough research on how to handle criminal prosecution emotionally.
To put it very bluntly, you don’t know what you are doing. All of those things online you have read about defenses? Forget about it: you do not have access to case law.
What is case law? Only the single most important thing in criminal law: actual legal cases where legal issues were decided by the courts. Does the hearsay come into evidence or not? Was someone’s legal rights violated? Does the evidence get suppressed? Is a witness allowed to testify? If the witness is allowed to testify, are there things they cannot even be asked? Is there a defense of “mutual combat” or defense of others?
These and many other questions can only be answered by legal research into the case law on a particular issue. Yet as you are reading this, someone charged with assault or battery is finding out the hard way that over confidence is risky and painful.
Diversion Programs instead of Negotiated Dismissals
Many people just want to go to court, plead guilty and get the case over with. The State prosecutor is waiting for these people – especially first offenders. They know you are scared of a legal fee as much as you fear the charge. But they can bet on large numbers of people making one or more of the mistakes listed above. This is how the worse plea bargains of all are sold to unsuspecting defendants: diversion programs.
Let’s take a generic, domestic violence battery charge as an example of how you will be manipulated without a lawyer:
Step I: the overconfident defendant shows up to court on the date specified in their paperwork. They do not know it is only formal charging – they think that it is a trial, have taken a day off of work because they will sit around the courthouse all day, and are completely unaware that their lawyer can legally enter a written plea and excuse them from attending court.
Step II: on a break, the prosecutor has the legions of unrepresented defendants line up for plea negotiations. The ASA doesn’t call it that – the judge will say something like “line up down the center if you are unrepresented and do not plan to retain a lawyer so the prosecutor can speak with you about your case.”
Step III: the overconfident defendant listened to a lot of advice from “my friend said”, researched their case day and night, and asks the prosecutor to drop the charges. After all, how hard can this be if the other party has already gone down to the State Attorney’s Office and “dropped the charges”?
Very hard: the Assistant State Attorney gently explains that it doesn’t work that way, but they will offer a plea bargain with adjudication withheld. Overconfident Defendant is ready for this, and points out that they will lose their firearms rights and they cannot agree to this. This is when Overconfident Defendant gets played for a fool: “what about a diversion program? Once you complete it, all of the charges will be dismissed.”
|Typical Negotiated Dismissal||Typical Domestic Battery Diversion Program|
|Pay $303.00 and charges are dismissed||Enter a plea of No Contest|
|Prosecution is deferred for one year|
|Monthly report to probation officer: $52/month|
|Domestic Violence Counseling every week for six months: $700 – 1,000|
|Cost of Prosecution: $50-100|
|No alcohol for one year; random urinalysis and drug testing: $100 – 300|
|Court costs: $662|
|Any violation results in sentencing and a permanent criminal record w/loss of firearm rights|
Sounds awesome, right? Not so fast: compare a “Diversion Program” with a Negotiated Dismissal:
A lawyer who self represents has a fool for a client. And you or your loved one is probably not a Florida Bar certified criminal law specialist. So, do the math: if you or someone you love self represents, you are wasting money, time and you are dramatically increasing your risk. At the very best, you will get a plea offer so bad the word “bargain” cannot logically come after the word “plea”. At worst, you will suffer some form of courthouse surprise.
If you had a heart attack, you would look for the very best heart specialist you could find. Do the smartest and most cost effective thing you can do if you or someone you love has been arrested: hire a certified criminal law specialist.