, , ,

Consider hiring a Criminal Defense Attorney to conduct Pre-Filing Negotiations as Part of your Criminal Defense Strategy.

By Gregory Ferbrache, a criminal defense attorney with over a decade of prosecutorial experience as a Salt Lake County Deputy District Attorney, Assistant Utah Attorney General, and Special Assistant United States Attorney for the District of Utah.  You may contact him at FerbracheLaw.com

All too often the criminal defense attorney is retained after criminal charges have been filed against you.   In cases that involve extended Investigations by the government, retaining an attorney while you are the Target of the Investigation is critical to a beneficial outcome.  Although it seems intuitive to do so, most attorneys are rarely able to employ this strategic tactic because they are not retained early enough.

Generally speaking, a complaint is made to the government alleging a crime is being committed and a request for an Investigation is submitted.   Unlike a crime of interdiction where the commission of a crime is clear, like an assault or a homicide, a report of a belief of a crime will require an Investigation. Usually these types of crimes involve financial fraud or a sophisticated criminal enterprise. Investigative tools to obtain evidence of these crimes may involve Administrative Subpoenas, Investigative Subpoena, Confidential Informants, Government Informants, Surveillance, and apprehension of co-conspirators who agree to give testimony.  At some point during the Investigation, you will likely be contacted by the government to make a statement.

DO NOT speak with the Government without first seeking advice of Counsel. Those statements are evidence and can be used against you.  The Investigator does not need to provide you their motive or purpose for getting your statement. Don’t believe telling the truth at this stage will convince the Investigator to close the Investigation, even if you are telling the truth!

Rather than provide an uncounseled statement against yourself, it is imperative, You, as the Target, go on the offensive with a well formulated strategy with your criminal defense attorney. 

It is important to understand that to begin an Investigation, an Investigator must have enough evidence to form a good faith belief that a crime is committed to further an Investigation. Put another way, the government shouldn’t be able to just go on a fishing expedition.  The Investigators standard for obtaining warrants, and to present a case to the Prosecutor is probable cause.  The Probable Cause standard is defined as a level of reasonable belief that a crime has been committed and you the target committed that crime. 

Once the Investigator turns the case over to the Prosecutor, the Prosecutor applies a Reasonable Doubt standard to determine whether to file the charges.  The Reasonable Doubt standard in Utah is defined as proof that is beyond a reasonable doubt, that leaves you firmly convinced of the actor’s guilt.  Applying this very high standard, the Prosecutor considers this standard to determine if the case has a reasonable likelihood of conviction at trial. 

Don’t leave that decision to chance and hope!

First, confer with your attorney about the evidence that has been gathered as part of the Investigation.  Understanding the story gathered by the Investigator and that will be presented to the prosecutor will help you determine whether they have the whole story.

Often, a case is presented to the Prosecutor with only the complainants story through the Investigator.  It is not until Jury Trial that helpful evidence to you is presented to the Jury and considered.  Although such a strategy may be effective in certain circumstances, convincing the Prosecutor they do not have a reasonable likelihood of conviction before filing a criminal case against you saves you significant stress and resources. 

Secondly, your criminal defense attorney will be able to identify the weaknesses of the Investigation. Directing the Prosecutor toward evidence helpful to you but not yet acquired by their Investigator can prove invaluable.  You have the benefit of speaking with your attorney. Investigators are limited to what has been presented to them through the complainant. The Prosecutor may simply not know the whole story, or have time to learn the whole story.  As a former prosecutor, having a meaningful conversation regarding material deficiencies in the Investigation can go a long way. 

Lastly, if the evidence exists to charge you, you now have the opportunity to negotiate the offense to a lessor charge before it is filed and without the judicially imposed time constraints.  This is helpful in many ways, especially if you can negotiate a misdemeanor offense be filed rather than a felony.  The benefit to the government and to you are less resources expended with an outcome already negotiated. 

Although this strategy is not for every case or every Target, finding an experienced criminal defense attorney to advise you on this tactic can greatly improve your outcome earlier in the process.