Myths About Criminal Justice
I wanted to write this post about the 5 Myths About Criminal Justice because I’ve heard these from people over and over again. I think there is a lot of confusion in the public about how the criminal justice system works. Most of these relate to getting charges dismissed or avoiding jail/probation/fines/court costs. I’m going to go over these one by one.
Clients have said to me:
1. There is a “Loophole” in the law.
I’m not exactly sure what most people mean when they talk about loopholes in the law. I’ve asked a few of them to explain to me what they mean by a loophole. Usually they come in and think that there is a part of the law which allows them to avoid the criminal consequences for their actions. In other words, it’s as if I know of a secret passage in the legal system which will give them a shortcut to charges being dismissed. To this day I still haven’t found this “loophole” that so many are looking for. Plainly, they don’t exist.
2. The person who called the police can “drop the charges.”
This situation almost always comes up in domestic violence cases. Most often a man is accused of assaulting a girlfriend, wife, fiance, family member etc… Calling the police and claiming you were threatened/hit in a domestic relationship is like firing a pistol. The bullet can’t be recalled or pulled back.
Unfortunately, once someone is arrested and charged with family violence, the charges don’t simply get “dropped.” No matter what you’ve seen on TV or in the movies, the decision whether or not to push the case forward depends on the prosecutor and not the police. Prosecutors may consider you Affidavit of Non-Prosecution when considering whether or not to go forward. However, this isn’t the end all, be all, of the case. Victims of domestic violence frequently change their stories or request that charges not be filed against the person charged with the crime. It happens very often. So much so that that’s the reason why prosecutors ultimately make the decision whether or not to continue with the criminal charges.
3. The police did something wrong so the entire case should be dismissed.
The police doing something wrong may or may not affect your case. Like most things in life, it depends on how big the mistake or wrongdoing was by the police. Violations of State and Federal Constitutional rights can greatly affect your case. Evidence may be excluded or suppressed if it was due to an illegal search. This doesn’t mean all searches or most searches are illegal. Most searches are legal.
If the police did something improperly, your criminal defense lawyer will judge whether or not the mistake rises to the level where your case will be affected. For example, an undercover police officer buys drugs from a person. The police officer, if asked to identify whether or not she is a police officer, says she is not. That person can’t say later that the undercover officer was obligated to identify herself as an officer. Because the officer didn’t identify herself doesn’t mean that the case against the person is bad.
There are many, many exceptions to the search warrant requirement. I’ll save search warrant exceptions for another post.
4. Hiring a criminal defense lawyer will get all of your criminal charges dismissed.
This one is really close to Number 1 above. I think this is also because of TV and movies. People can have unrealistic expectations from what they’ve seen on TV, watched in movies, or heard from friends and family. I like to set expectations right off the bat with clients and their criminal charges. I also like to explain the road map of the legal process. Usually this means telling you what to expect next, what’s around the corner, what can happen, what may happen, and what likely will happen. The last thing I want is a client to tell me “I didn’t expect ______,” or say “You didn’t tell me about ______.” Dismissals aren’t the norm. Dismissals are the exception. Any lawyer who promises you a dismissal of your criminal case has made unrealistic promises to you.
I tell my clients what they NEED to hear, not what they WANT to hear. Getting a client’s case dismissed isn’t impossible. There are many things going on with a criminal case. In some situations, more work up front by your criminal attorney may affect how likely a dismissal will be. A lot depends on the facts of you case and the individual prosecutor. Hiring a lawyer will give you a much greater chance of a dismissal than fighting the charges alone.
5. After ____ number of years my criminal record will be wiped clean.
I’ve heard this more often than I’d care to mention. People say things like “I got arrested back in _______ (over 5-10 years ago) and haven’t been in trouble since. I went to _______ or was stopped for ______ and somehow my record came up.”
Most of the time people are reminded about their criminal records during an employment background check. Criminal charges DO NOT go away after _____ number of years. Once charges are on your adult criminal record they do not go away unless there is some type of record sealing – Non-Disclosure or Expunction. Record sealing comes in two ways, one of which I talk about in Sealing Criminal Records in Texas. A Non-Disclosure doesn’t make the charge disappear or go away, it simply hides it from certain eyes.
Depending on how your criminal case ends or is “disposed” of, will affect how it appears on your record. Your lawyer should talk to you about those effects. These effects can be called “collateral consequences.”
At the end of the day, your record doesn’t go away unless steps are taken to hide it (non-disclosure) or have it wiped clean (expunction.)
The Bottom Line
I hope this post helped to clear up some common myths about criminal justice. These myths come up regularly so I thought it might be best to explain why they’re wrong while pointing people in the right direction. If there are any questions about these, feel free to call or email me.
