Common Mistakes Lawyers Make

The Top 10 Mistakes Lawyers Make in Sex Assault Cases . . . And How To Avoid Them

Even though attorneys are schooled in the laws pertaining to a wide variety of legal areas, a huge amount of expertise comes from practical experience, either by prosecuting or defending individuals or businesses. For sex crimes cases, which involve a great deal of science in addition to just knowledge of the basic governing laws, this experience may be the most critical thing. And because of the complexity of sex assault cases, knowledgeable, experienced criminal attorneys consider them to be among the most difficult to defend. Because of this same complexity, a great many attorneys make up to 10 big mistakes when it comes to defending clients accused of sex crimes . . . mistakes which can profoundly harm their clients in terms of losing their freedom, listing on the public sex offender registry, paying considerable fines, going to prison, loss of family, and so on.

To protect yourself and to help decide whom to hire and how to proceed, you had better know what these mistakes are.

1. Assuming the case can’t be won. We’ve been practicing criminal defense law for decades and we’ve come to believe that making this assumption and pleading you guilty is the single most important mistake attorneys make in representing individuals arrested for sex crimes. Truth be told, most attorneys are afraid to tackle these sort of cases. At KRONZEK & CRONKRIGHT, these cases are our focus. You see, after reading the police report and hearing from the prosecutor, many lawyers simply give it up and advise the client to plead guilty. That’s the worst possible result. In fact most police reports are full of factual errors. Many prosecutors do not understand the cases they prosecute. Many cases have potential built-in flaws. Flaws which can make the difference. For example, the results lots of evidence can be challenged through a Motion to Suppress, or statements from the alleged victim can be challenged on cross examination of the police officer or the victim herself. We’ll say more about these in a minute. Is it more costly to defend than to plead guilty? Maybe. But even after fighting these cases for many years we haven’t been able to put a price on your freedom. We always assume that spending years in prison would be more costly in many ways that fighting. But with so much at stake (including considerable costs, fines, probation oversight fees, etc.), the possibility of winning should not be just dismissed. And it may cost less in the long run. And it’s not just client costs that are involved. You see, a lawyer who just advises you to plead guilty and who charges a low fee to take care of that is just asking for a malpractice claim in many cases. Particularly in cases involving a high profile person, a case resulting in serious injury, or one where your livelihood is at stake.

2. Not fighting the “over charging”. Another common mistake lawyers make is not contesting the “over charging” that is almost always done by prosecutors. It seems to be an old game. Charge the defendant with lots and lots of offenses knowing full well that many of them would never stick, and then offering to drop the frivolous charges during plea bargain negotiations. Lawyers call this an illusory plea. But it’s simply not the case that over charging cannot be challenged. It can often be won based on technical defenses and with the filing of motions by an aggressive attorney. Moreover, by not contesting this overcharging, some attorneys begin from a position of weakness rather than from a position of strength.

3. Assuming that the rules were followed. Michigan has rules and regulations and laws concerning the collection of evidence. The critical point for the prosecution is that these rules must be followed. This leaves open attacking the results on the grounds that the rules weren’t followed. Through conversations with other attorneys, we’ve discovered that far too many lawyers don’t read the statutes and regulations covering evidence. Some lawyers read them but don't understand them. Still others ignore them all together. Those that don’t know or understand the law don’t realize that violations of the law introduced into evidence can show that the pieces of evidence are unreliable. Further, showing this can be used to exclude the evidence results altogether. Here’s an example. The officer collecting a sex assault kit is supposed to carefully document every person that has custody of that evidence from the moment is it collected until the evidence is brought into court. That does not always happen. A number of courts have excluded physical evidence for this violation even though it was otherwise reliable. This is called “chain of custody.” In fact, a host of criteria must be met or the test results may be thrown out.

4. Not filing a motion to suppress. Not filing this pre-trial motion before a trial is a huge mistake according to many experts, and maybe the most common mistake according to others. Even though this motion to suppress evidence doesn’t always succeed, a case can be won by filing it. There are lots of reasons that evidence should be suppressed. Some examples are that the evidence was obtained unlawfully, that the evidence was mishandled or that the evidence is misleading to the jury. Equally as important, even if the motion loses, it often provides another opportunity to question the arresting officer. The officer can be asked broad range of questions. And his testimony can be used at trial as well as in plea bargaining. If the testimony is different in the suspension hearing, the preliminary hearing, and again at the trial, the stronger your case is. And it is not uncommon for this to happen. Our defense team routinely files suppression motions.

5. Not personally checking out the scene of the alleged crime. Most lawyers don’t visit the crime scene. And this can be exceedingly crucial. Our defense team routinely visits the scene where the crime is alleged to have occurred. Other times our team decides that the scene is best visited and documented by an experienced private investigator working with our defense team. It is common for many photographs, measurements and videos to be taken at the scene. Why? To begin with, it is nearly impossible for an attorney to completely understand the logistics of the scene without first visiting the scene. For example, the layout of furniture (or lack of furniture) in a room could be crucial to a winning defense. Various windows, doors and room dimensions must be carefully observed and documents. It is difficult and sometimes impossible to use that information well during a trial if the attorney lacks the understanding to explain those details to the jury. Seeing and knowing these things makes it much easier for your lawyer to ask probing questions about the alleged crime scene, in some cases, point out a physical impossibility to the jury. Again, an example: A child alleges that her step parent molested her one evening. By visiting the alleged crime scene (which is their home) it may become obvious that the room where the molestation is said to have occurred was wide open to other siblings also living in the home and if there had really been a sex assault on the child, two other siblings would have observed it.

6. Not exploiting the advantage of child interview protocols. Michigan has a specific set of protocols for interviewing child witnesses. Each of the protocols is there for a specific reason. When the police or others fail to properly interview an alleged child victim, the information given by the child may become tainted and thus unreliable. Likewise, multiple interviews of a child by multiple interviewers can lead to a tainted, unreliable interview. At the very least, these protocols should be studied by your lawyer. He or she will then know exactly what questions to ask the arresting officer (and others that interviewed the child) to see if he completely followed Michigan’s protocols. Our defense team has repeatedly observed that even when police officers claim to have done an interview using the protocols, that is seldom the case. You see, if the protocols weren’t completely followed, the interviews validity can be attacked. At what point the interview is attacked varies by case. Wherever your lawyer does it, a successful challenge may result in the evidence being excluded at trial. That significantly weakens the prosecutor's case. We’ve found that in an extremely large number of cases, the police do things inconsistent with the child interview protocols. Our attorneys are trained in the protocols. Our team of defense experts understands how and why improper interviewing of children can be used to your advantage. We challenge the interviews and often succeed in showing juries that the interview is invalid.

7. Not explaining the extra penalties coming with a conviction or a guilty plea. If your lawyer doesn’t advise you about the extra consequences resulting from a conviction, this is malpractice. Why are these important? Because they can include additional probation, fines, costs, probation oversight fees, a felony criminal record for life and most importantly, being listed on Michigan’s public sex offender registry. And this mistake is all too common among lawyers. You must take these extra penalties into account when deciding to plead guilty. If you’re not aware of these penalties, you cannot help but be the loser.

8. Improper decision about putting the client on the stand. Not all defendants charged with sex crimes should be put on the stand. If your attorney fails to carefully consider whether to put you on the stand, and if you are not involved in that very important decision, it is malpractice. Moreover, a defendant who is put on the stand shifts the jury’s focus. The objective of the defense is often to show that the prosecutor’s case is not strong enough to convict beyond all reasonable doubt. When the defendant is put on the stand, however, the focus shifts to the credibility and honesty of the defendant. The jury is thus forced to choose between the accuser and the defendant. Plus, it gives the prosecutor the chance to make the defendant look like he’s hiding something or lying. Often it makes perfect sense to put the defendant on the stand. Often times putting the defendant on the stand is the key to getting the defendant convicted. Making that decision is a task for a highly trained and experienced trial attorney. Beyond that, your lawyer should stick to placing reasonable doubt in the jury’s mind.

9. Attempting to show the officer lied. Look, your lawyer doesn’t need to make the officer sound like he lied to put reasonable doubt in the jury’s mind. All he really needs to do is show how the officer might simply be mistaken this time. Or perhaps the officer jumped to a conclusion in believing the accuser. Why? Because the jury doesn’t want to believe that the officer is lying. But it will accept the officer being mistaken. Not to mention, do you think the officer will admit that he is lying? It’s far better to simply paint the case as being about a cop jumping to conclusions and making mistakes.

10. Not consulting an attorney who focuses on sex crimes defense. Attorneys who concentrate on sex crimes defense law say that someone who doesn’t focus on this area of the law should not advise clients about this very difficult and complicated specialty. Just as you wouldn’t hire a criminal attorney to advise you on business law or divorce, you shouldn't trust your future to a lawyer that hasn't had many years of experience in sex crimes defense. The reason for this is simple: sex crimes law is complex, it involves a lot of science, and a generalist cannot be everything to everybody. Knowing how to defend a sexual crime involves considerable preparation, familiarity with the law, understanding of forensic evidence, experience selecting juries and knowing what motions to make and when. An attorney who focuses on defending people charged with sex crimes has that knowledge. He or she will quickly be able to spot potential defenses. They’ll know what the investigation and discovery should be. If your lawyer does not concentrate in this area, you may not be getting the best advice and you may not have the strongest case. You see, a sex crime is often amongst the more serious crimes in Michigan. The public sex offender registry, the increased penalties and the long periods of imprisonment have made these cases not just complex, but also important. So it’s necessary for you to hire the best attorney you can afford so your case is as strong as possible.