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Salt Lake City Criminal Attorney | “Does this outfit make me look fat?”: Infringing the 5th Amendment

April 11, 2012

As a Salt Lake City Criminal Attorney, you can imagine, I have a pervasive obsession with protecting the general public’s Constitutional rights.  I do not “defend guilty people” as some would suggest.  I protect the Constitution.  And in light of that pursuit, I thought that I should tell you all about a recent trend I’ve noticed with local prosecutors.

Lately, local prosecutors at preliminary proceedings such as pretrial conferences, have been asking defendants, and their attorneys, whether the offense they are charged with is their first offense.  The reason that prosecutors want to know is that prior offenses have a big impact on sentencing.  With certain crimes, Utah DUIs for example, subsequent offenses trigger higher minimum sentencing requirements.

Now, you should bear in mind that finding out whether a defendant has a prior conviction is usually as simple as looking at the criminal background check, which is, as a rule, printed out for the prosecutor’s file.  But with some cases, I’ve seen prosecutors literally just fail to look at the report.  It’s sitting right there in the file, it takes thirty seconds to check, but they just.don’t.bother.

It is my position that in a preliminary proceeding, neither a defense attorney, nor a defendant should respond to a question about their prior convictions.

For a defense attorney, I believe that answering this question would be unethical due to the attorney/client privilege.  Where the attorney has knowledge of a client’s prior convictions that the prosecution is unaware of, the attorney’s disclosure of that information would be against the interests of the client, and thus a violation of the Utah criminal lawyer’s code of professional responsibility.  If you think that sounds crazy, I will tell you that I am not alone.  In Utah Ethics Opinion 05-02, the ethics committee of the Utah State Bar considered what an attorney should do in this position, and stated that it would be an infringement of the attorney/client privilege for the attorney to answer the question.  You might be thinking that this is one of those “technicalities” that you’ve heard about on NYPD Blue.  The “technicalities” that lawyers like me use to get “get guilty people off”.

It is not a technicality, it is a cornerstone of your Fifth Amendment right to remain silent, and of the burden that the State has to prove its case against you.

In fact, it is the prosecution’s duty to produce evidence to substantiate the charges against you, and prior convictions are no exception.  If a defendant does not admit to having prior convictions, the state must actually go through and PROVE that there are prior convictions in the same way that it must prove the defendant was at the scene of the crime, or any other element necessary to secure a conviction.

What the prosecution is doing by asking the defendant and their lawyer, on the record during the proceeding, is to get out of doing the work that the Constitution mandates they perform.  And god forbid that an attorney answers this question, or allows his client to answer it when he can simply invoke his 5th Amendment right to remain silent.

Now, if it were as simple as invoking the 5th amendment when such a question is asked, then I would not be so upset about this recent trend.  However, it gets sticky whenever the question is even asked.  Imagine that you are in court, waiting to plead guilty or no contest to a DUI pursuant to a plea agreement with the prosecutor; If this is your first DUI, and the prosecutor or the court asks you whether you have any prior DUIs then you have nothing to worry about.  You and your lawyer simply say “no”.  Right??? Er……well Imagine that you DO have a prior DUI, and that the prosecutor has failed to properly perform his or her job and has not discovered this prior DUI, but instead has decided that they will just ask you if you have a prior conviction in the hopes that you’ll be honest.  Well, now it’s not so simple.  Now you don’t want to tell the truth because it will mean a significant increase in penalties.  And you don’t have to tell the truth because of the 5th amendment right you have against self-incrimination.  However, you also cannot LIE, and neither can your attorney.

So you wont say that you have prior offenses, and you can’t say that you don’t.  What do you say?  You have to say something like “I refuse to answer that question on the grounds that it may incriminate me.”  Ah, but that is no good, because it’s very suspicious.   Now the court and the prosecutor are on notice, and they’re going to go and do what they should have done in the first place, and look at your record to see if there’s anything there.  At that point you may as well just tell them about your prior conviction.

For that reason it is my opinion that it is improper for the court or the prosecutor to even ask the question.  It is the legal equivalent to asking your spouse, “does this outfit make me look fat?” – you can’t tell the truth, and yet you can’t lie…no one comes out happy.

However, improper as it may be, the courts and prosecutors that are starting to do this don’t seem to realize.  They apparently have not read ethics opinion 05-02, and they don’t seem to care about attorney/client confidentiality.   And that is why I have a simple solution to this problem.  We as Salt Lake City criminal attorneys, and you as defendants and citizens with Constitutional rights to protect, must always refuse to answer this question on the basis of the 5th Amendment.  That way, it will no longer appear suspicious when the defendant refuses to answer the question, and if the prosecutor is concerned they will be forced to do the work to find evidence that proves that the defendant has prior convictions – as they are supposed to anyways.

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