Facing Criminal Investigation? Why It Is Important to Consult an Attorney Beforehand

Barnea Jaffa Lande & Co.
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People become familiar with criminal investigations through Hollywood films or detective television programs. Usually, the scriptwriter divides those being investigated into two categories: one – the sophisticated interrogee, usually a public figure or a person of financial means who is accompanied by an attorney who object to any difficult question posed to the client. After a short while, the interrogators are left frustrated, whereas the interrogee leaves the police station grinning and smug at the performance of the attorney who had defeated the investigators.

The second category is that of the naïve interrogee sitting in the interrogation room without having consulted an attorney and is “broken” in short order by the experienced interrogators who leave the room with a detailed confession to solve the case. Only then and after the interrogee realizes that his situation is dire, he seeks to ask for an attorney – too little, too late. This time it is the interrogators that leave the interrogation room grinning.

Unlike in American films (and American law), in Israel it is not customary for a defense attorney (a lawyer who defends suspects in a criminal proceeding) to be present during interrogation, and the interrogated suspect contend alone with the interrogators’ questions. However, the Israeli interrogators have a duty to warn the suspect at the outset of the interrogation as to the suspicions for which they are being questioned and inform them that they are entitled to consult an attorney as well as to remain silent (witnesses are not entitled to such rights, but that is out of the scope of this article.)

A criminal investigation may be conducted not only by the police but also by different government agencies, the Securities Authority, the Tax and VAT Authority and others. They all have investigative, search and seizure powers (and usually they even operate in collaboration and with the support of specialized departments in the prosecution as relevant to the area of expertise and authority of the investigating agency) and they all, without exception, have the duty to warn suspects before the interrogation begins and inform them of their rights.

The importance of suspects exercising their right to consult an attorney cannot be overstated – should one be so unlucky as to arrive at an interrogation room, one would not wish to be standing in the shoes of the naïve interrogee. The significance of consulting a defense attorney is rooted in the view of the courts that a criminal investigation has the ability to uncover the truth when the suspect first encounters the suspicions and evidence against him in the absence of mediators or middlemen. As a result of this assumption, the view is that the suspect’s true version is that which was given by him first. Going forward, should the suspect give another version or wish to amend former versions, that later version shall be considered manipulated or calculated with the intention of preventing the suspect from being brought to justice as opposed to an authentic version of events.

This view is immensely flawed. However, for our purposes, it is important to understand that this is the view which governs courts since the dawn of time. This is the reason for the critical importance attributed to the things said in the interrogation and the dramatic impact they may have on the rest of the criminal procedure.

This does not mean that a suspect who was incorrect during the interrogation, for instance admitting to the alleged offenses despite not having done anything (and this happens often), or said things without accuracy as to times, referenced feelings instead of facts (and this happens all the time), or mistakenly thought that he may endear himself to his interrogators and have an “off the record” conversation with them in the hallway (surprise! Everything is on the record), may mount a proper and effective defense and claim innocence, but the work that would be necessary to fix what was done during the interrogation at a later stage during the trial would be ten times as difficult than it would be for a suspect that was prepared and conducted himself properly during interrogation.

It has already been written quite a lot about suspects facing criminal investigations, when almost all of them attempt to prepare the suspect for what he may expect in the interrogation room, while emphasizing interrogators’ interrogation tricks. But the most important and determinative decision when a suspect consults an attorney is the decision whether to exercise the right to remain silent or whether to cooperate with the interrogators and provide a statement.

From time to time a suspect may be lucky enough to be summoned for interrogation by telephone. In this case he is able to leisurely meet with an attorney and arrive at the best decision for the matter. However, mostly, the consultation takes place only after the suspect has been arrested and while he is still awaiting the defense attorney in the interrogation room. Then, though it is usually only a short period of time of 30 minutes, the defense attorney – together with the suspect – must make an educated decision that would determine the future of the defense strategy throughout the entire criminal proceeding.

In this short amount of time, and assuming the attorney has successfully pulled the suspect out of his initial state of shock (most law-abiding citizens who are summoned to an interrogation for the first time are in a complex mental state that moves between “if I’m here, I must have done something” and “this is a conspiracy by the police/ Securities Authority/ Tax Authority”), the defense attorney would ask to hear from the suspect what the suspicions against him are, whether he knows the matter of investigation (you may be surprised, but often times suspects do not know why they were summoned for interrogation) and the main points of the suspect’s version. After hearing the gist of the suspect’s version, the defense attorney must consider and decide whether the version is reasonable and plausible, and more importantly, whether in the attorney’s opinion the suspect’s mental state would allow him to contend with the interrogators and successfully convey the primary points of his version.

It is important to emphasize that in white collar crimes of the financial offenses’ variety, such as insider information or securities fraud, breach of trust, and various briberies, the preferable choice ought to be cooperation in the interrogation and providing the suspect’s statement. Though a suspect has a right to remain silent in Israeli law, this right is highly costly. For instance, a suspect who remained silent during his investigation will not be permitted to present his statement for the first time during the hearing and his ability to persuade the prosecution for avoid filing charges would be severely compromised due to his silence.

More importantly even, his testimony before the court shall be considered with much doubt as to the reasons for not stating his case as early as the interrogation stage. In the absence of extreme circumstances of use of prohibited pressure tactics during the interrogation or the existence of a compromised medical or mental condition for the suspect at the time of the interrogation, the willingness of the court to believe the words of the defendant (and the defendant himself) would be very low and the ability of the defendant to conduct his defense to reach a proper legal outcome would be significantly hindered.

We should hope that the only interrogations you know continue to be held on Netflix or on the movie screen, but should you indeed come across such a situation it is recommended that you consult an attorney and conduct your defense properly as early as at the interrogation stage.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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