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Gaerte Explains How the Emotions of a Criminal Case Often Lead to Adverse Evidence


The advice, “Say nothing,” in an initial meeting seems simple enough, but any attorney with a few years under his or her belt knows that the advice is often not heeded by clients. Bingham Greenebaum Doll LLP attorney K. Michael Gaerte and co-author James J. Bell discuss the emotions of a case that are often too much for a client to handle and the client’s statements, following the initial meeting, that sometimes lead to adverse evidence in their new “Inside the Criminal Case” column for the Indiana Lawyer.

McElfresh v. State

Gaerte and Bell explain that sometimes, the client wants to take matters into his or her own hands. Sometimes the client wants to take the offensive, talk to adverse witnesses or simply blow off steam. As shown in this recent case, these statements can also lead to new charges.

In McElfresh, Gaerte and Bell said a defendant signed an agreement to plead guilty to molesting three children. However, prior to the court’s acceptance of the plea, the defendant wrote a letter to a victim’s mother which noted the similarities in the victims’ statements and opined that “[t]hey were coached as [sic] what to say, and I know if anyone could find out the truth, it would be you!” The defendant then stated that if he could have “gotten” the victims to admit their false statements they would have been charged with “False Informing.” Based on this letter, the defendant was charged with and later convicted of, attempted obstruction of justice.

In the civil context, Gaerte and Bell stress that it may not be unusual for parties and witnesses to interact. For example, in a family law proceeding, the parties have to interact on issues such as child care. However, McElfresh demonstrates that there is always a risk that any statement one participant in a proceeding makes to another can lead to differing interpretations – even by a group of judges. As criminal attorneys, we need to appreciate this risk, they said.

Matter of Anonymous

Similarly, in the Matter of Anonymous, a criminal defense attorney represented an employer in allegations that the employer and his employee conspired to defraud the United States. According to Gaerte and Bell, the criminal defense attorney wished to sever the employer’s trial from the trial of the employee. To do that, he needed an affidavit from the employee stating that the employee would waive his Fifth Amendment privilege and testify at trial. The employee was represented by counsel.

After several phone calls with the employee’s counsel, there was no decision regarding the affidavit. Running up against a deadline, the employer spoke with the employee and obtained the employee’s signature on the affidavit. The affidavit was eventually filed in court without the employee’s attorney’s consent.

Gaerte and Bell explain that the criminal defense attorney was found to have violated Rule 4.2 of the Indiana Rules of Professional Conduct which states that “a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented in the matter.” Going further, the Supreme Court concluded that even if his client was not acting as the attorney’s agent, the criminal defense attorney “ratified” his client’s contact with the employee by “failing to take steps to intervene” when the client presented the affidavit for signature.

Safe Advice

Attorneys can’t change the facts and often can’t change the law, Gaerte and Bell explain. When they are hired, their first goal should be to prevent the situation from getting worse.

In order to reach the goal, attorneys routinely advise clients not to talk to anyone. As part of that advice, the attorney can cite the example from McElfresh that demonstrates that even truthful statements can be viewed as coercive and criminal. When an attorney has knowledge that a client seeks to communicate with a participant in the case, the attorney must proceed with caution.

While the attorney can ethically advise the client regarding the communication, the safe advice will always be for the client to remain silent and to allow the attorney to handle the communication. Gaerte and Bell say, if the client insists on making the communication, the attorney should take the time to document the advice he or she gave.

Read “Inside the Criminal Case: When your client is speaking to others,” on the Indiana Lawyer website.

To learn more about K. Michael Gaerte and his practice, please visit his profile.


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