HOW TO FIND THE BEST DEFENSE ATTORNEY FOR YOUR CASE
WHEN YOUR LIBERTY IS ON THE LINE, REAL EXPERIENCE MATTERS
If you are charged with a Felony, or Class A Misdemeanor, the State of New Hampshire can ask that you be incarcerated if you are convicted. A Class A Misdemeanor has a potential incarceration period of one year, a Class B Felony has a potential incarceration at the State Prison of up to seven years, and a Class A Felony has a potential incarceration of up to fifteen years. Certain felonies,such as Sexual Assault offenses, and Controlled Drug offenses, have the potential for longer terms of imprisonment beyond a fifteen-year State Prison sentence.
If you are facing potential incarceration of a year, or more, both the New Hampshire Constitution, and the United States Constitution, provide the right to be represented by an attorney. You have the right to find an experienced, and competent, lawyer of your own choosing. If you do not find yourself a lawyer, and you want a lawyer to represent you, the trial court will appoint you a Public Defender or contract attorney. If you do not hire a lawyer of your own choosing, a random appointment will be made from a pool of attorneys who represent clients for reduced fees. If you are facing possible incarceration, and want to take charge of your future, protect your liberty, finances, family, job, etc., you want to retain a lawyer with the experience, and talent, to protect those things that are most dear to you.
WHY JURY TRIAL EXPERIENCE IS SO IMPORTANT
If the State is looking to incarcerate an individual for a year, or more, the New Hampshire and United States Constitutions entitle you to a jury trial. In New Hampshire, juries consist of at least twelve members, as well as at least one alternate. In order to convict you, the State would need to convince all the jurors of your guilt beyond a reasonable doubt. While a defendant may waive their right to a jury trial and let a judge make the determination of guilt or innocence, most defense attorneys would not advise that for the vast majority of cases.
Insist on Real Jury Trial Experience and Success
Because your case may end up in a jury trial, regardless of your guilt or innocence, it is of the utmost importance that your attorney be experienced in trying criminal jury trials. When you are facing possible incarceration, and you are looking for an attorney to represent you, you should demand your attorney have the necessary experience. You should insist that your attorney has successfully tried many jury trials. You should ask the attorney a direct question regarding jury trial experience, and insist on an honest, upfront answer. It may surprise you to know that the vast majority of private criminal defense lawyers have very little, if any, experience actually trying criminal jury trials. The majority of the criminal docket in New Hampshire courts consists of Violation and Class B Misdemeanor offenses for which you cannot be incarcerated. Many defense attorneys make a living representing clients on these minor offenses that cannot end up in a jury trial or incarceration. For the relatively small numbers of private defense attorneys who have tried jury trials, you may be shocked to find that they can count them on their fingers.
How much experience is enough? That question is ultimately up to you but, if you were facing a life threatening operation, would you want the surgeon to have performed the operation ten times or less, or would you want the surgeon to have successfully performed over a hundred such operations? Your liberty, finances, job and relationships are much too important to leave to the inexperienced.
Insist on a Felony Criminal Defense Practice
The majority of felony cases are much more complex than Violation and Misdemeanor cases. They often involve forensic evidence such as DNA, autopsies, accident reconstruction, ballistic analysis, fingerprints, communication intercepts, etc. In order to effectively represent you, your attorney should be very well versed in all these areas, as well as the case law and court rules that correspond to them. If the attorney doesn’t have experience in these areas, how can the attorney evaluate the State’s evidence, find the holes in the State’s case, and possibly keep the evidence out of trial? How much of this type of evidence do you think the average criminal defense attorney, who handles mostly Circuit Court cases where you can’t be incarcerated, has any significant experience in?
You will find that water will eventually reach its level, and those who can handle felony cases appropriately and successfully will devote the majority of their practice to not only criminal defense, but to felony criminal defense. If you have to have a cancerous lesion removed, would you go to a general practitioner to have the operation? Of course not! And the same mindset should apply to finding the appropriate criminal lawyer to handle your felony case.
Insist on Former Law Enforcement Experience WORKING ON FELONY CASES
Many people have found that former prosecutors make the most successful criminal defense attorneys. There are several reasons for this. One of the reasons is the sheer number of cases that a felony prosecutor usually has at any one time. A hundred, or more, cases at any one time is not unheard of in New Hampshire. A felony prosecutor who spends years prosecuting cases will have exposure to thousands of cases and should have tried many, many jury trials.
A former felony prosecutor will have experience handling many evidentiary issues, motions to suppress, bail arguments, etc., that could be very important to the lawyer’s representation of you. It would take several lifetimes of private criminal defense work to come near the volume of cases, and experience with all types of felony cases, that a felony prosecutor who prosecuted for ten years or more would have.
An experienced former felony prosecutor should also be very knowledgeable about how the State investigates cases, and the people who investigate them. This could prove very valuable when it comes time to evaluate the strength of the State’s case against you, and defend you on your charges.
RELATIONSHIPS ARE IMPORTANT TO YOUR CASE
You have probably heard the phrase, “it is who you know.” While not always determinative in felony cases, it can’t hurt your case for your attorney to be known by, and to have good relationships with, prosecutors, police officers, and judges. These relationships are fostered, and strengthened, through years of handling many felony cases. When looking for a felony defense attorney, don’t be shy to ask pointed questions about the actual number of felony cases a particular defense attorney has handled in the attorney’s career. The respect your attorney commands, can also impact the resolution of your case.
Good, Respectful Relationships with the Prosecutor
and the Police Work to Your Advantage
Former prosecutors will have established long lasting relationships with other prosecutors that can work to your advantage in trying to resolve a case favorably. Prosecutors have tremendous discretion in how to handle their cases. When discretionary decisions have to be made, or can be made, it is human nature that it could be beneficial for your attorney to have a good working relationship with the prosecutor.
Prosecutors often look to input from the police on how to handle cases that the police department forward to the prosecutor’s office. As with the defense attorney’s relationship with the prosecutor, a good relationship with the investigating officer(s) can be helpful in resolving the case to your advantage. Even if the relationships former prosecutors have can’t help resolve the case short of trial, your attorney’s intimate knowledge of a particular officer, or law enforcement department, could be used to your advantage at trial.
Experience With a Particular Judge is Invaluable
to the Decisions You Must Make
All judges have their own practices and tendencies when it comes to accepting plea deals, making pretrial and trial rulings, sitting on trials, and sentencing defendants found guilty after trial. It is very important that your attorney be familiar with the scope of sentences a particular judge will accept, how a particular judge is likely to rule on pretrial and trial motions, evidentiary and procedural quirks of a judge, and what a judge is likely to hand down for a sentence on a non-negotiated plea, or after trial.
This type of experience with a particular judge come through years of appearing in front of the judge. Be wary of retaining an attorney who doesn’t often practice in New Hampshire courts. Sometimes, it is the intricate nuances of a particular prosecutor, investigator, or judge, which will determine the best course of action to take in defending you. Sometimes it is a small, or little known, nuance of New Hampshire law, or procedure, that will tip a case in your favor. A “hired gun,” who rarely appears in New Hampshire courts, is not likely to know, or be able to effectively exploit, these potentially case-saving nuances.
The Reputation of Your Attorney Can Directly
Impact the Resolution of Your Case
The overwhelming majority of criminal cases are resolved with a plea deal. According to statistics kept by the United States government, approximately 97% of federal cases, and 94% of state cases, end up with a plea bargain. You should always keep in mind that you, and only you, decide on whether you go to trial or accept a plea bargain.
In order to make this decision, most defendants rely on the counsel of their attorney. If your attorney does not have the experience to fully understand your case, the State’s evidence, the prosecutor, the investigator, and the judge, how can this attorney ethically, or effectively, counsel you on your options? If your attorney doesn’t have the experience and confidence to try felony jury trial cases, this is where a defendant can be “pressured” into accepting the State’s plea offer.
If you want your case to go to a trial, insist on having your trial. It goes without saying that you want to have the right lawyer for your trial. But it is every bit as important that you have this same talented attorney if you want to explore the best possible plea deal you can obtain.
Prosecutors know the most talented defense attorneys in New Hampshire. They also know the defense attorneys who successfully try cases on a regular basis. A prosecutor is expected to get a guilty conviction on almost all their cases. The statistics referenced at the beginning of this section show that the overwhelming majority of cases end in a conviction. If a prosecutor knows they are facing a tough case, with a tenacious and talented defense attorney, this can work to your advantage by getting you a better plea deal.
Plea deals occur when the State is willing to accept less of a sentence prior to trial than what would be expected after trial. In exchange for accepting less of a sentence, the prosecutor, and the State, are guaranteed a conviction. If the prosecutor is facing a defense attorney who is not well respected, or capable, what incentive does the prosecutor have to give you a great plea deal? On the other hand, if the prosecutor knows that there is a talented defense attorney representing you, the prosecutor is aware that increases the likelihood of success at trial and can lead to a better plea offer to “insure” a conviction for the State.
In short, if you are going to trial, you want the most talented and respected defense attorney defending you. If you do not want to take your chances with a trial, and possible post-trial sentencing, you want the same talented and respected defense attorney getting you the best possible outcome for your case.
WHAT ISN’T IMPORTANT WHEN EVALUATING CRIMINAL DEFENSE LAWYERS
When choosing a defense attorney to defend you, and protect your liberty, it is imperative that you find an attorney with relevant experience. The sole fact that a particular defense attorney has been “practicing for 30+ years” means little, or nothing, to you. 30+ years practicing what? Criminal defense? What kind of criminal defense? Here are the questions that you want the answer to: (1) how many felony cases have you handled in your career?; (2) how many criminal jury trials have you tried in your career?; and (3) what percentage of your practice is felony cases? When your liberty is at stake, you don’t want somebody who has to check the internet to find directions to the Superior Court in New Hampshire where you are being prosecuted.
Don’t be distracted by how many legal associations, committees, chamber of conference associations, etc. a particular lawyer lists as “accomplishments.” Most legal associations require only three things: (1) a law degree; (2) payment of dues; and (3) time. When it comes to evaluating your case, picking apart your case, negotiating your case, or trying your case, how are any of these things going to help you? They may help the attorney get more clients, but they are not going to help you.
Don’t rely on the advice of attorneys who don’t practice criminal law to refer you to the best defense attorney for your case. Just as a dentist can’t refer you to the best surgeon to remove your tumor, an attorney who doesn’t practice criminal law has no idea what you should be looking for in an attorney, or what attorney possesses the talent and experience you should be looking for. Are you more concerned with your liberty, or some attorney that a non-criminal law attorney may know from a parent-teacher association at school?
The internet can be a great place to start your research in choosing a defense lawyer. However, be wary of internet sites that will list recommended attorneys if they pay the correct fee to the organization. If the person doesn’t stress their thousands of felony cases, over 100 jury criminal jury trials, and primary felony case practice, you should probably keep looking.
IT IS YOUR LIBERTY THAT IS ON THE LINE - DEMAND THE BEST!
Talented criminal trial lawyers are not just born. But they are also not just made either. Like any highly skilled craft, it takes years of learning, honing, and perfecting skills to become an effective and persuasive advocate. And at the end of the day, some people just aren’t cut out to be trial lawyers. The ability to persuade a jury is something that takes experience, and some people just won’t get much better than when they start out. There is some element of performance art in trying cases, and most lawyers never become effective trial attorneys.
A criminal lawyer cannot change the facts of your particular case. But a good criminal lawyer can use the lawyer’s talents, experience, and relationships to get you the best possible outcome for your case.
It is important that you like, and feel confident with, the attorney you choose to represent you. A competent, and talented, defense attorney will welcome your questions regarding relevant experience and qualifications to handle your case. Do your research, ask the proper questions, insist on relevant answers, and choose somebody that you are confident will best help protect what you hold most dear - your liberty, relationships, and job.