ANDY RADDING: Get an attorney right away. Listen to the attorney's advice. If you disagree with your attorney, discuss it with him. If you have questions, ask questions.
BYRON WARNKEN: You want somebody who knows the law, who knows the system, and who knows the people. For example, if you regularly practice in this county, you have a pretty good feel for how do the prosecutors handle this, how do the judges handle this.
ANDY RADDING: First thing I am going to do is look at the charging document and read what the government is saying the person did.
JOSE ANDERSON: A lot of times you will get a police report that will show many incriminating things and the client wants to tell you, "well, it's not me, I did not do this."
ANDY RADDING: I have been doing this for a long enough time that I know how things happen and how things occur and I can make pretty good judgments. That does not mean I am every time going to know whether you are telling me the truth or not.
JOSE ANDERSON: I have read the police report and I have read many police reports and it is pretty clear that there are very few people who are not going to believe you did this.
If you have not told me the whole story then, when we go to trial or when we're negotiating, I can be blind-sided.
JOSE ANDERSON: Understanding that you are not going to win with the defense that you are suggesting, what other ways you can think about proceeding with this case?
ANDY RADDING: Lets try to work out a plea agreement to resolve the case.
You have got an absolute privilege when you talk with me about what you have done in the past. If you are telling me what happened, even if you admit to me that you committed a crime, I cannot go and tell anybody about that.
JOSE ANDERSON: The job does not end with there confession. In fact, that's where the job begins.
The Attorney-Client Privilege
If confessing to your lawyer could be held against you, who in their right mind would tell their attorney everything?
The answer: Nobody with anything to hide, that is. But because the right to effective assistance of counsel is so important, the law fosters open and honest communications between a lawyer and her client by keeping these communications confidential or "privileged." This means that, even if you tell your lawyer where you stashed the murder weapon, he can't turn you in to authorities. The lawyer has a professional and ethical obligation to keep these communications a secret and could even be disbarred for violating the privilege. This is true even if that initial consultation went poorly and you declined to hire the attorney to take your case. You've still got an attorney-client relationship that will protect these communications.
Now, if you blabbed about the murder weapon to family and friends, telling your lawyer about it won't help you. That's because the communication wasn't confidential in the first place. The privilege only applies to confidential communications between a lawyer and her client.
And while confessing past crimes to your lawyer won't get you into trouble, consulting with counsel about your plan to bump off your boss certainly can and should. Heck, maybe you'd like to ask your lawyer the best way to embezzle the company's funds without attracting the attention of authorities. Not only must the lawyer decline to provide you with helpful tips on that, he can, indeed, report you to authorities. In short, you can't use a lawyer to help you commit future crimes. Period.
States vary in their recitation of the privilege, but it generally applies to communications between an attorney and client for purposes of facilitating legal representation or legal advice. After all, the lawyer can't defend you effectively if you don't give her the whole story. But make sure you keep these communications confidential. If your best friend Harvey drove you to the lawyer's office and sits in on the meeting instead of waiting two hours in the lobby, everything you say in his presence is fair game. Now, your lawyer should know that and offer Harvey an espresso while he waits out in the hall. But just make sure that key problem doesn't arise.
Lest we be naive, there is one consequence to confessing to your lawyer you should understand: Once you spill your guts and describe the gory details of the murder plot, don't expect your lawyer to put you on the stand to lie and deny everything. A lawyer has an ethical obligation to keep your secrets, but she's also considered an "officer of the court" who cannot knowingly "suborn perjury." Maybe that's why many criminal defense lawyers refrain from asking their clients whether they pulled the trigger?
Still, honesty is clearly the best policy when it comes to dealing with your lawyer. As Andy Radding warned in the video, those who take the stand intending to lie often wind-up limping away after cross-examination ... with their legs in shackles as the police escort them to jail!
The moral of the story? Be open and honest with your lawyer, but keep your mouth shut around everyone else.