That is not a discussion that we have in the first interview because most people are not open to that avenue because it appears to the client to be dangerous. It also appears to the client to be against a code of conduct in their life. If the client mentions that, sure, it’s a serious consideration in every single case. Prosecutors generally are always interested to sit down with any drug user to find out who is higher up on the chain especially if it’s non-marijuana. That type of cooperation creates a couple of things. It creates a prosecutor giving you a benefit because the prosecutor catches bigger bad guys and the prosecutor sits down with the defendant and basically breaks bread with the defendant for a half-an-hour and sees that this is not a monster, this is a normal person. He likes this person and can’t believe this person was caught with cocaine. The prosecutor, through getting to know a defendant and liking them, is more likely to give that person a better deal.
Is That Always the Case or Can It Actually Hurt a Drug Case?
It can hurt a case. Sitting down with the prosecutor can hurt the case when we have a beatable case and then the defendant basically confesses. The prosecutor has a different view on the defensibility of the case. In other words, before we sit down with him, if the prosecutor thinks there’s a fifty-fifty chance of conviction in this case in front of the jury, then we sit down with the prosecutor and confess to everything. The prosecutor is going to see the chances of winning through more rose colored glasses because they just heard a full confession. They can’t use the confession in court but the defendant can’t testify and because the defendant can be cross-examined. If the defendant testifies with everything the defendant told to the prosecutor, that’s how sitting down with the prosecutor can hurt.
The other way that it can hurt is that some prosecutors demand full disclosure on all crimes ever committed. If the prosecutor feels like the defendant is holding back on other crimes, then a sense of annoyance and anger can well up in a prosecutor because they’re human beings and they tend to see the defendant as more of a menace because the prosecutor feels that the defendant looked me in the eye and repeatedly lied to me. Therefore the prosecutor says, “I’m going to get this guy because he lied to me. How dare he lie to a law enforcement agent when I was giving him the opportunity to ride the get out of jail cart and yet he just couldn’t muster up the moral courage to simply tell me the truth”. Therefore the prosecutor’s upset and may treat the defendant more harshly after a proper session.
That is a danger that we need to avoid. The way that defense attorneys deal with that is you have strict guidelines and boundaries of the proper session but we’re just going to talk about dealing cocaine in this area for the last year and nothing else. As long as you keep things to certain boundaries, then the defendant has every incentive to tell the truth and you’re not going to upset the prosecutor by not answering questions about other street crimes or other crimes that occur in the neighborhood. A lot of prosecutors know who the regular friends and associates are of a particular defendant and the prosecutor may be much more interested in a murder or a rape or some other crime where the defendant’s friend or known associate is a major suspect. If the defendant won’t talk about his friend or associate and the prosecutor’s focused on that, then that can create a negative reaction.
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