When someone is locked up awaiting trial, he has all day to sit and think about his case. Inevitably, there will be inmates on the pod who know all about the “system” and have all kinds of advice to dispense. Even a defendant who is not in custody will likely get advice from well-meaning friends and family members. Most of the advice is simply wrong, or at least is blown out of proportion.
Of course, an inmate should never talk about his case with another inmate (potential State witness), on the phone (recorded), or in a letter (copied by DOC). But it happens. So, based on calls we get from clients, friends, and family members, here are the top seven myths and the real story:
- “If you don’t get indicted within 45 days, your lawyer has to ‘put in for a dismissal’ and the case gets dismissed.” This legend is based on a 1990s administrative directive (not a law or rule) that has long since been abandoned. When we get calls to “put in for a dismissal,” we explain that there is no such rule. If a case gets to about 60 days old, we reach out to the assigned prosecutor and ask when they plan to present the case to the grand jury. If that doesn’t work, then yes, we file a motion to dismiss. But the chance of those getting granted is almost zero. What happens at that motion hearing is that the prosecutor is given another few weeks to get the case to the grand jury. So what the motion does is help move the case towards the top of the pile for indictment. But it does not get dismissed. A related issue is right to a speedy trial, which covers from indictment to trial. We do file speedy trial motions when we have a basis to do so.
- “Your co-defendant is going to ‘take the charges’ so your case should get dismissed.” The one normally comes up in drug and gun cases and is based on a fundamental misunderstanding. The crime is not ownership of drugs or guns, but possession. Possession can be sole or joint. So if A is in a car with B and B says the drugs are his, A is still potentially in possession of the drugs. It may be helpful at trial if the B testifies that the drugs were his. But the case is not going to get dismissed pretrial. Whether the defendant has “knowing possession” of the drugs or gun is a matter for the jury to decide at trial after hearing all the evidence.
- “You should go to trial and if you lose just do an appeal.” An appeal is not a do-over. It is not a new trial. It is a claim to a higher court (the Delaware Supreme Court) that the trial judge made a mistake or that something unfair happened in the trial. And the Supreme Court shows great deference to most of the trial judge’s rulings. That makes sense. The trial judge was there, on the scene, and saw the witnesses testify. Some appeal claims are reviewed “de novo,” which means that the Supreme Court takes a fresh look at it. But still–only about 5% of appeals result in the defendant getting a new trial. And that is all an appeal gets you at best–a redo. The Supreme Court does not dismiss cases. So in most cases—not all—the decision to go to trial vs. taking a plea should not be based on a possible future appeal.
- “Your lawyer has to put in for a suppression.” Motions to suppress evidence are based on the unlawful seizing of property or the improper taking of custodial statements. In other words, evidence can be suppressed when the police violate your constitutional rights. We file motions to suppress whenever we can. But we are not allowed to do so without a legal basis. Often evidence is seized but it is done properly–so no motion. If it was done unlawfully, then we absolutely file the motion to suppress and it is heard by a judge before the trial date. And many cases do not have evidence that is suppressible, because nothing was seized from the defendant and the defendant did not give a statement.
- “The cop did not read you your rights so the case has to get dismissed.” This legend came from TV shows dating all the way back to Dragnet. Miranda warnings are only required when a person is in custody and getting interviewed by the police. The suspect must be told he has a right to remain silent and a right to a lawyer. Getting arrested does not trigger Miranda. Only custodial statements require Miranda warnings.
- “The plea deal will get better on the day of trial, so you should hold out.” This rarely true. Our system has a first case review, a final case review, and then about 8 days later, a trial. The best plea offer is at the final case review, after plea negotiations have taken place. After that, the prosecutor has to subpoena witnesses and prepare for trial, so the incentive to work the case out lessens as the trial date approaches. Sometimes plea offers are withdrawn completely if the plea is not taken by the final case review date. Also, there is a policy that pleas to lower offenses cannot be taken on the day of trial—it has to be an indicted charge.
- “The victim is going to ‘drop the charges,’ so the case should be dismissed.” We get this one in assault and domestic type cases. But people don’t press charges—governments do. Defendants are arrested by the police and charged by the Attorney General. The prosecutor decides whether to go forward with the case or not, even if the alleged victim wants it to go away. Important note: a defendant always has a no contact order with the alleged victim. They should never reach out, or have someone reach out, to the alleged victim about coming to court. That will likely bring new criminal charges such as hindering prosecution, breach of release, and witness tampering.
The bottom line is that defendants accused of crimes need to make smart choices based on the advice of their real lawyer—and be very skeptical the advice they get from jailhouse lawyers. Each case is unique, and the attorney on the case is in the best position to give proper legal advice.