While reading about Jane Doe’s foray into the criminal justice system (see Part I and Part II), I hope there were points where it was obvious how a lawyer would have helped. I am going to highlight some of the less obvious ways that a lawyer could have helped Jane. However, before I do that I would like to address a couple common misconceptions that might prevent a reader from appreciating the hypothetical.

The first misconception is that the prosecutor would have dropped the charges once she saw that Jane was not guilty. Maybe a few prosecutors would, but not nearly enough. I have personally witnessed some appalling cases move forward when a defendant acts as their own lawyer (i.e. pro se defendants). For example, I once saw a pro se defendant plead guilty to a DUI when her BAC was .04 on the breathalyzer (well under the legal limit of .08).

The second misconception is that pro se defendants do not perform as badly as I indicated. I have personally witnessed much worse: they make irrelevant arguments and forget to make their best arguments; they throw around legal terms that they do not understand; they get flustered when a judge inevitably rules against them; and they antagonize the judge unnecessarily.

How would a lawyer have helped Jane Doe? First, a lawyer would have saved her time. Many Utah courts will forgo the arraignment if their attorney has notified the court that they are pleading “not guilty.” If if that is not possible, the attorney can let the court clerk know at the arraignment that they will be entering a “not guilty” plea, allowing to defendant to see the judge faster.

Second, an attorney would explain to Jane the purpose of each court date and the likely outcome. She would not arrive at court expecting the prosecutor to just drop the charges. Even when defendants have great arguments for dismissing charges, prosecutors want to investigate and make sure they are not missing crucial information. Once a prosecutor has had a chance to verify the claims, then they might dismiss the case. Even without a dismissal, prosecutors are more likely to offer a reasonable plea agreement when they know you have an attorney.

Finally, everything about the trial would have gone smoother. Although it is conventional wisdom to ask for a jury trial, this hypothetical may have called for a bench trial. There are specific facts a prosecutor must prove beyond a reasonable doubt for someone to be convicted of theft of services. Judges are better able to understand arguments such as Jane lacked the “requisite intent” to steal.

Defense attorneys have experience public speaking. It is common for attorneys to practice their opening statements. Assuming it is a jury trial, more than half of all jurors do not change the opinions they form during opening arguments. That is the time to tell the jury, as plainly as possible, why a defendant is not guilty. Defense attorneys generally do not lose their composure when prosecutors say something negative about their clients.

Cross-examination, done by a talented defense attorney, could have won Jane her case. The police officer could have been used to Jane’s advantage. The officer did not witness Jane at the restaurant, and he was only able to find Jane because she was the person to pay with a credit card. An attorney would have pointed out to the jury that the fact that the server did not see Jane pay also means the server was not watching closely. A lawyer would also point out that there were two other people eating with Jane.

Jane’s friends might have still invoked their rights and chosen not to incriminate themselves, but the lawyer would at least have been prepared for that possibility. The lawyer would have talked to them before the trial and known how likely they would be to testify.

Most importantly, a lawyer would have prepped Jane to testify. The jury would have heard all the important pieces of her side of the story. An occasional objection from the prosecutor would not have flustered Jane’s attorney. Also, the lawyer would know how to enter Jane’s credit card receipt into evidence. There are certain procedures one must follow to enter a document into evidence, and I have never seen a pro se defendant do it correctly.

The bottom line is that a criminal conviction has long-term consequences. It is best to leave criminal defense to someone with experience handling trials.