Should You Hire a Lawyer Before Being Charged with a Crime?
Depending on the location and severity of an alleged crime, you might be:
Contacted by police to be questioned about a crime, but not yet arrested or formally charged with a crime.
Arrested by law enforcement, but then released from jail without being formally charged with a crime in the court system.
If you are in one of these situations, you may want to consult an attorney about representing you to get ahead of the situation. Some less-experienced attorneys might tell you that you don’t need to hire an attorney yet and to call back when you are officially charged with a crime—in our experience, this is usually not the right answer.
Instead, the attorney you contacted should ask you questions about the facts and circumstances surrounding your arrest and/or investigation. Based on your answers, the attorney may either:
Determine whether there are immediate steps they can take to help you minimize, or even avoid, criminal charges.
Advise that you are unlikely to be charged, so it is best to save your money and not hire an attorney at that point.
Three Common Instances it is a Good Idea to Hire an Attorney to Help You Before Charges are Filed
If law enforcement is knocking at your door.
If police officers are attempting to contact you to ask questions to investigate a crime, you almost always want to hire an attorney to represent you.
First, the attorney will be able to “insulate” you from the police, indicating to the police that they cannot contact you directly or question you without your attorney present.
Second, your attorney can determine whether it will help your position to speak with the police at all.
Third, if you are innocent, an attorney may be able to communicate with law enforcement to help clear things up so that you are not arrested or charged with a crime in the future.
If you were arrested and released from jail with no formal criminal charge – or – you were still in jail awaiting charges while a friend/family called an attorney on your behalf.
Many people think that if you are arrested then you will automatically be charged with a crime. However, an arrest does not mean (necessarily) you will be charged with a crime right away. An officer can book someone into jail for an alleged crime, but on many types of cases (felonies and county police officer cases mainly) it is up to a prosecutor to decide if and when a criminal charge is filed.
For felony charges or charges involving county police officers, such as the Washington State Patrol or a county sheriff, charges happen after a prosecutor reviews a police investigation against you and chose to formally charge you with a crime in the court system. This process can take months, even years, depending on the nature of the case and the statute of limitations for the crime in question.
In this instance, an attorney may be able to help you get ahead of the situation before you are officially charged in the court system.
If you were arrested for or suspected of DUI.
If you were arrested or suspected of DUI, we strongly recommend hiring an attorney, even before criminal charges are filed against you. You will need an attorney not just to fight a potential criminal case but to also represent you in department of licensing (DOL) proceedings related to suspending your driver’s license. In most cases you only have seven days after being investigated for DUI to request a DOL hearing to try to keep your license, so contacting an attorney right away in this situation can be critical.
Retaining an attorney is also crucial to preserve evidence that can be used in your defense. For instance, in a DUI case, you will want to preserve law enforcement videos of any breath tests that were performed on you, as the videos may show that the officers involved didn’t follow proper procedures. In many cases, law enforcement agencies do not store breath test videos for very long, so an attorney can take steps to obtain these videos before they are overwritten or destroyed.
What Steps Can an Attorney Take to Help You Before Criminal Charges Are Filed Against You?
There are many steps an attorney can take to help you in your case before you are formally charged with a crime.
Your attorney may decide to complete a public disclosure request to get information about your case.
An attorney will often request copies of the police reports that were sent to the prosecutor for reviewing your case. Once the attorney reviews the reports, they may be able to:
More accurately predict the likelihood that the prosecutor handling your case will file criminal charges against you.
Begin building your defense early based on details in the police report.
Find errors in how the investigation was handled and tell the prosecutor, which could lead to a better result for your case, or you potentially not being charged.
Your attorney can help you alleviate the stress and emotions of dealing with a potential criminal case.
A good attorney will listen to you, be there for you, and help educate you on navigating the legal system. A good attorney will also recommend strategies and support systems to help manage any negative emotions you may be experiencing regarding your potential criminal case. A good attorney will help alleviate stress you may be feeling about your case, so that you can instead focus on your day-to-day life and sleep better at night.
Your attorney can advise you on preparing for potential criminal charges.
Your attorney may advise you on how to thoroughly write down helpful details of the incident while you can still clearly remember them. They can also advise you on how to help gather evidence and witnesses for your defense.
Your attorney may be able to present evidence to the prosecutor that helps you avoid a criminal charge.
A prosecutor is not required to listen to a defense attorney, or look at key evidence you may have, when deciding whether to file a charge against you. However, a defense attorney with a good reputation may be able to talk with a prosecutor and present evidence that prevents you from being charged with the alleged crime.
Your attorney may have you complete some classes or treatment to improve your chances of avoiding criminal charges.
While prosecutors are not required to consider proactive, affirmative actions you have taken, such as classes or treatment, they may be more amenable to not filing charges against you if you have taken these steps. Additionally, if you are eventually charged with a crime, the classes and treatment that your attorney had you complete will still be relevant in negotiating a better outcome for you in the official court case.
Your attorney can monitor the court system to see whether charges have been filed against you.
When you are charged with a crime, the prosecutor will not call you to inform you about the charges. Instead, they file charges against you and send you a notice in the mail telling you when to appear in court. The worrisome thing is that it can take a prosecutor years to charge you—for example, for a misdemeanor crime, a prosecutor has up to two years to charge you.
A lot can happen in a few years. Perhaps you move addresses during that time. Unfortunately, court notices are not forwarded to your new address. So, if you have moved, or don’t receive your mail at the time you are charged for some other reason, then you risk missing your court date and ending up with a warrant out for your arrest.
So, if you retain an attorney, they can regularly check whether charges have been filed against you and ensure you don’t miss your court date. If you are not constantly worried about whether you’ve been charged with a crime, you can then focus on family, travel, work, and generally living your everyday life without concerns about missing a court date.
Your attorney can notify you if they discover the prosecutor has declined to charge you.
If a prosecutor decides not to charge you with a crime, they unfortunately will not notify you of that fact. The only way to safely find out if you are not going to be charged is to have an attorney who knows specifically who to call in the prosecutor’s office, so that your case is not brought to the prosecutor’s attention unnecessarily. It is not a good idea for you to talk to the prosecutor directly, as they may take a closer look at your case and/or charge you because of something you said during the interaction.
Instances in Which You May NOT Need an Attorney Before Charges Are Filed
You may not need to hire an attorney if:
The situation is so ridiculous that charges are highly unlikely to be filed against you.
The alleged victim does not want to cooperate with the police investigation and/or does not want a prosecutor to press charges against you.
If you are caught shoplifting but the store doesn't call the police or file a police report, and that store historically never follows through with making a police report for theft, then hiring a lawyer may be unnecessary.
Bottom Line
You may be a person who is proactive and wants to do everything possible to protect your future. Alternatively, you may be a person who is not too worried about the situation, and you feel that everything will eventually work out all right. Your risk tolerance often determines whether you need a lawyer before you are charged with a crime.
If an attorney offers to help you in your case prior to you being formally charged, it is because they have strategies for your situation that they think will benefit you. Depending on the attorney, they may charge you a lower rate to help you in your case before charges are filed, and then credit that fee towards representing you in a court case if charges are filed against you. If an attorney offers this type of representation, then retaining them before charges are filed against you is an early investment to get ahead of the situation and could have compounding, positive effects.
The bottom line is that even if you haven’t been formally charged with a crime and you are unsure if it is too early to contact an attorney about your case, it is still a good idea to reach out for a consultation.