You Have The Right To an Attorney

By: Peter Welte, Grand Forks, ND

In the real world, the criminal law arena is just as interesting as it is on television—think “Law and Order”. Similarly, we live in a world where the law is a blunt instrument, and it’s incumbent upon prosecutors to wield that instrument in a judicious manner.

Case law in North Dakota grants vast discretion to State’s Attorneys in carrying out their duties. In a 1983 case in which a citizen demanded that the Cass County State’s Attorney charge a law enforcement officer with a crime, the North Dakota Supreme Court reinforced the idea that the State’s Attorney’s prosecutorial discretion is vast and deep. The Court stated “The necessity for the exercise of sound judgment and discretion by the State’s Attorney in the charging process has long been recognized by our Court.” They further stated “the office of state’s attorney is held as a public trust, and the incumbent is charged with the grave responsibilities calling for the exercise of learning in the law and sound judgment.”

In a subsequent 1999 case the North Dakota Supreme Court declined to force the Morton County State’s Attorney to charge a crime in which a citizen felt they were a victim. Emphasizing the discretion held by a State’s Attorney, the Court stated “a state’s attorney’s exercise of discretion must consider the situation not only from the eyes of the complainant, but must also consider the requirement of probable cause and the reasonable probability of obtaining a conviction by a jury of citizens from the community. This Court has recognized, however, a state’s attorney’s duties must be performed regardless of public sentiment about enforcing certain laws.”

State’s Attorneys have vast discretion in charging out crimes against citizens over whom the court has jurisdiction. And the North Dakota Supreme Court has indicated that only in truly exceptional circumstances will they step in and restrict that discretion.

Why do I bring this up? Because most of our criminal defense clients are simply good people who have made a poor decision, whether getting behind the wheel after a few drinks, fighting back against a bully, or something else. And several of them didn’t even make a poor decision, but were simply in the wrong place at the wrong time. We usually defend people after they’ve been charged with a crime. That can be difficult once a person has already been interviewed by law enforcement, and law enforcement has already made up their mind about their version of the facts, and the State’s Attorney has already received only one side of the story.

There are two sides to every story, right? When I was a prosecutor, I always wanted to know both sides of the story before proceeding with criminal charges. But the reality is that prosecutors have limited resources and pressing schedules, and sometimes a prosecutor simply doesn’t get both sides of the story. Like many criminal defendants, prosecutors are good people who sometimes make a decision based on inconsistent facts. But these decisions can result in a person being charged with a crime. Hiring an attorney early can help you get your side of the story to the prosecutor, and it might prevent you facing criminal charges at all.

The founding fathers had endured a British government that didn’t acknowledge the need for “the consent of the governed”. So in drafting the Declaration of Independence, they stated in wonderful prose “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The Constitution, and the interpretation of the Constitution by the courts, provides that preserving these unalienable rights is important enough that you, as a citizen, have the right to an attorney before facing the loss of “Life, Liberty, and the pursuit of Happiness”.

If law enforcement approaches you to ask questions about something, and you start to get the idea that they actually suspect you of being involved in a crime, you have the right to counsel before continuing the interview. Many people don’t realize that. Or if they do realize it, they go ahead and speak to the law enforcement officer because they didn’t do anything wrong and they want to let law enforcement know that. On top of that, law enforcement officers are trained professionals, and can be persuasive. They may not want you to speak to an attorney before speaking with law enforcement.

You have the right to consult an attorney if you sense that law enforcement thinks you are a suspect in a crime. If you exercise that right early, you can save yourself a lot of money, time, and heartache. If you have a criminal issue in North Dakota or Minnesota, do not hesitate to contact Vogel Law Firm at 701-203-8760, or send an email at pwelte@vogellaw.com.

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