Glen R. Graham, of the Oklahoma Criminal Defense blog, recently posted the “Practical Advice for Anyone Accused of a Crime.” Most aspects of the advice also ring true in West Virginia. For instance:
I would tell you to keep your mouth shut and not to discuss your case with anyone because they can become a witness against you — even involuntarily — if the prosecutor subpoena’s them to testify. Do not bring your family into my office to discuss the facts of your case in their presence because they may become subject to an involuntary subpoena by the prosecutor at a later time.
This reminds me of the first time I learned a big lesson that probably every criminal defense attorney learns at some point. The client as charged with fraud in a fairly high profile case, and I bought into the client’s story hook line and sinker. Based on the assumption of the correctness of the client’s version of the facts, I advised the client not to take the initial plea offer, which was pretty good. But the plea offer was only good up and until the case went to the grand jury. We didn’t take it. But at the grand jury, several close family members ended up being subpoenaed, and guess what? Apparently the client had confessed to each of them privately, and I had no idea. The family members, facing prosecution for perjury, were forced to reveal the confessions to the grand jury. He was indicted on their testimony, and ultimately forced to take a less generous plea deal.
What was the lesson? When it comes to considering plea deals, you have to assume that your client is guilty and that he or she is lying to you, because you don’t always know it when they are, and the one time you do, you’ll get burned. And secondly, clients need to keep their mouth shut around their family members – even their spouses in some instances – because an aggressive prosecutor can subpoena all of them before the grand jury, scare the living daylights out of them, and force them to reveal what you told them.
– John H. Bryan, West Virginia Attorney