I just finished a criminal trial and a week later, mediation in a civil case. Each reminded me that this is an adversarial system. Your case is not necessarily about the truth. Harsh? Maybe, but that is the reality.
Whatever type of case you are involved in, the legal process involves two different narratives, or stories. In the criminal case there is the prosecutor’s version of guilt and your version of innocence. It’s winner take all in the criminal courts, with your life and freedom on the line.
In a civil case (for example personal injury or wrongful death), there are also two stories. As the plaintiff (person who brings the case), your story is about how you were a victim of another person’s actions and the damages you incurred. As the defendant (person who is being sued), your story is about how you are not to blame, or how the plaintiff’s actions brought about his or her injuries. That story is also about innocence.
In every case, each side supports their story with evidence. For example, in a homicide case, the prosecutor will offer evidence of guilt. The law requires proof beyond a reasonable doubt, and the burden of proving a crime is always on the prosecutor. The defendant has no requirement to prove anything. He or she can remain silent, but that almost never happens. Why? Because even before a trial most defendants have made statements to the police.
If your defense to homicide is self-defense, your story will mean the difference between guilt and innocence. Self-defense is an absolute defense to criminal and civil liability under Idaho law, but almost nobody knows what makes the use of force lawful as opposed to unlawful. Get it wrong and you could go to prison. So do not expect that by telling the law enforcement officer your version of events you will automatically avoid being charged criminally. The story has to be told correctly to escape the criminal justice system.
“I just want to get your side of the story.” That’s what the police will say to try and get a statement out of someone they think is a suspect.
The right to remain silent exists, but it is seldom seen in the wild. Everyone talks. If they don’t talk to the cops, they talk to their spouse or friend or family member. Not long ago I handled a criminal case where the defendant told a friend that he had left a “package” in a “can” where his car had been found. Guess who was listening. The jail phone calls are recorded and each call is reviewed. In that case, federal agents were waiting at the address for the friend who showed up to retrieve the “package” of methamphetamine from the garbage “can.” To borrow from tennis; game, set, match. Client cannot escape and goes to federal prison for a long time. What would have happened if he had simply let it go? Not told someone to go and get that package with three pounds of methamphetamine? He would likely still have gone to prison, but for a far lesser amount of time.
“Loose lips sink ships.”
In the self-defense context, whatever you tell an investigator or detective or “first cop on the scene” is your story. If it is not just right, you may face a criminal trial regardless of whether you thought you had the right to use force to repel an attack or defend your property.
Even in a civil case, the parties have likely told their story to friends, co-workers and others before they have a lawyer. Statements made by parties may be viewed as admissions, and an admission of liability is a dagger through the heart of the case. That dagger can cause a settlement for even the best intended party in a civil case, or criminal matter.
Jurors never really know all the facts. Their version of what happened is framed by the parties and their presentations in court. So as you think about a case, whether it is a civil case or a criminal case, remember that the person advocating for you is that lawyer you have chosen. The way the case is framed for the jury may be the most important task for the lawyer, so do not make the job harder by spreading your story to others. Save it for your lawyer.