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The Criminal Justice System:

The popular television crime drama Law & Order begins by informing viewers there are two parties in the criminal justice system, the police and the prosecutors. In actuality, this simplified version ignores most notably, the defense. Many people do not understand that one of the primary roles of defense counsel is that of quality control for the police, the Government, and the Court system. A trained and experienced advocate will challenge the acts of the Government at each turn and point out where conduct in a particular case did not meet the mandates of the United States Constitution – if the Government violated a defendant’s rights, they cannot use that bad evidence to convict a defendant.

Once a criminal charge has been brought, and either an information or indictment filed, the case will go through a series of relatively predictable steps. First, the defendant is arraigned: This is the time where you learn of the formal charges against you, the judge advises you of your rights, and those who qualify are appointed public defenders. Next, trial dates are generally set. For in-custody defendants in cases set in Oregon State Court, cases are set within 60 days; in Federal Court, the time is 70 days, unless the defense agrees to a setting outside that time period, or in Federal Court if the case is declared complex. All other hearings in the case will be set in relation to the trial date. Speedy trials rarely benefit the defense because the State or Government is generally ready to go to trial the day they filed their charges: Their case has been investigated, their witnesses are subpoenaed, and they have often had a dry run at trial via the grand jury. The defense on the other hand, needs to locate witnesses, interview them, obtain experts (and then coordinate with their busy schedules), conduct independent tests, obtain evaluations of the defendant if appropriate, etc. This very rarely can be done within 60 or 70 days.

It is frustrating, but one of the most important things in defending a criminal case is to do everything possible on the front end to avoid a conviction: coulda-woulda-shoulda is not going to support your family during an unearned and undeserved penitentiary sentence.

The Accusation:

Unfortunately, many people become aware of a criminal accusation when they are contacted by the police. The police know this, and use this moment of surprise, shame, and shock to their advantage to build their case by obtaining incriminating statements, sometimes a confession. Hiring competent counsel as soon as possible is imperative. An attorney can step between you and the police, providing a layer of protection from the fear, and hassling that often come with being labeled as a suspect. Additionally, defense investigation can begin while critical physical evidence is still available, and eyewitness testimony has not been clouded by police interrogations or simply fading with time.

Occasionally however, an accusation will come to the attention of the “suspect” prior to contact by law enforcement: It is at this time that obtaining an attorney is ideal. Once involved, an attorney can begin investigating the allegations, and make inquiries with the investigating officers or detectives. It is easier to defend a case that is never criminally charged than once the criminal justice machinery has begun its work. By investigating the case early, there is still time to plant the seeds of doubt, or innocence, with those who will be making charging decisions – those decisions will impact the rest of your life.

Many people accused of criminal acts want to begin immediate prosecution of their accuser, either civilly or criminally; most defense attorneys will advise dealing with your own legal situation before pursuing remedies against the accuser in order to best position defend your case.

Talking to the Police:

I advise most of my clients to invoke their rights to remain silent, to have counsel present during any interviews, and to refuse to answer any additional questions. Once a suspect has invoked their right to remain silent on one subject, the police can continue to question them about other, unrelated crimes they are investigating; it prolongs the cat-and-mouse game and often leads to statements which in retrospect, a client wishes they had not made. However, if a suspect invokes their right to counsel, or to an attorney, all police questioning must stop, except that necessary to complete the booking procedure (name, address, date of birth, etc.). Recent Supreme Court case law may allow the police to recontact a suspect or continue asking questions, so it is imperative that a suspect have the force of will to remain silent and refuse to engage in any conversation until they have consulted with competent counsel1.

Some clients believe they can speak with the police because they are “smarter” or more savvy than “the average criminal.” This is often a big mistake: no matter how smart you are, you are playing at a game the police play every day, and indeed are well trained to play. Would you assume you could fly an F-15 without training because you are smart? Would you attempt to look at a microscopic slip to do your own DNA analysis without training? Probably not.

Similarly, the vast majority of people benefit from the advice of a trained advocate when dealing with the criminal justice system.

Police make the decision whether there is probable cause to arrest: but they are not the final arbiter of what charges a defendant will face. Once a suspect has been arrested, they will generally be booked (processed through the jail system), and then face arraignment. In the time between the arrest and the arraignment, another group will evaluate the police officer’s reports and witness statements to determine charges: The district attorneys.

The police serve a valuable role in our society: They protect us from those who would harm us, and the threat of police involvement keeps most honest people honest. But the reality is modern police work has separated many officers into an “us versus them” mentality, and the officer’s suspicions of everyday citizens lumps all of “us” into one category: potential suspects.

What this means for you, is that once you are on an officer’s radar, you should assume they will believe the worst about you. Police are trained interrogators, and their training encourages them to obtain confessions at any opportunity. Indeed, one very widespread police interrogation course tells police that even “a provable lie is as good as a confession.”2 Many cases that would otherwise be defensible to a jury are plea bargained because the defendant either confessed, or made statements which could be interpreted as incriminating.

An experienced attorney can advise you whether, why, and how to speak with the police and accompany you to any interviews to protect your rights.

The Prosecution of Charges:

The prosecution represents “the people” – in Oregon they are referred to as District Attorneys, or in Federal Court as Assistant United States Attorneys. The prosecutor’s job is to prosecute crimes for their jurisdiction (such as the city, county, or for federal crimes). Although their job is also to “seek justice,” that is a task many view very differently than a suspect or even the defense bar.

Prosecutors will review the police and investigator’s reports, and often speak with complaining witnesses (whom they will refer to as victims), witnesses, and forensic experts. In so doing, they will evaluate:

  1. Whether a case should be brought (cases where they determine no crime was committed, or where it is apparent prosecution will be impossible are ‘no complainted’)
  2. What charges are appropriate under the facts of the case
  3. What their position will be on the release status of the defendant: do they feel the defendant should be in jail pending trial, or are there release conditions which will “ensure the safety of the public and the victim, the defendant’s court appearance and that the defendant does not engage in domestic violence while on release.” 3
  4. Whether to schedule a grand jury to hear the case

In State Court, the prosecutor will then file an “Information,” which is the charging document filed with the court and causes the machinery of the criminal justice system to begin turning. A file is opened with the court, and court appearances begin getting scheduled. For misdemeanors, the case will proceed under this document; felonies require a probable cause determination before they may proceed – either by way of a preliminary hearing, or more commonly by a grand jury. A preliminary hearing gives the defense the opportunity to cross-examine the state’s witnesses, and is therefore rarely used by prosecutors.

The prosecutor has sole control over the grand jury. The grand jurors will decide in felony cases which charges, if any are appropriate, at least in theory. The problem of course with this theory is that they are advised by the prosecutor, the only legally trained person in the room. The old adage is that even a bad prosecutor could indict a ham sandwich for murder. That being said, most prosecutors approach their jobs with fairness and diligence, and are not out to unnecessarily charge those undeserving, or add to their own caseloads.

Grand jury indictments in Oregon are always listed as “Secret Indictments,” a term most people find puzzling. The simple answer is the only secret is that the defense team, and the defendant were not present for the grand jury. The defendant/suspect does not have a right to testify before the grand jury; it is only by the prosecutor’s grace that defendants are allowed to address the grand jurors. Even when suspects are allowed to testify, they must do so without their lawyer in the room. This leads to an awkward situation where the defense lawyer loiters in the hallway outside the grand jury room, waiting for their client to come out and request additional advice. The prosecutor can, and will ask questions of the defendant in the grand jury, thereby opening the defendant up for potential problems with both testimony, as well as the loss of trial strategy down the road.

An experienced advocate can guide you through the system, helping you make the best possible decision for you and your case at each stage of the proceedings.

Your attorney can prepare you to make the decisions you’ll need to in order to minimize the damage an accusation will have on your family, your life, and your reputation.

Montejo v. Loiuisana, 129 S.Ct. 2079 (2009).
2 See for instance, The Reid Technique, John Reid & Associates, www.reid.com.
3 See ORS 135.230 – .290, also, 18 USC § 3142.