I’ve done a few hundred consultations in my career. I almost always ask about a potential client’s criminal history (sometimes for ticket case I don’t, or sometimes in other consults I forget, it happens). We also have intake forms that ask about your criminal history. Potential clients who have the most criminal history, are often reluctant to explain their entire criminal resume.
They are afraid that I won’t believe them if I know about their past. They want to avoid starting the conversation by telling me they’ve been arrested before, or been to prison before. There is also a weird belief that being arrested for a different category of offense somehow doesn’t count.
For example, I’ve had people arrested for a violent offense who had prior convictions for drugs not tell me because “those were drug cases, this is my first assault.” There is this weird reflex to rationalize not disclosing cases that are in the wrong category of offense. This is your first assault, great, but if you have prior cases for ANYTHING, let your lawyer know.
You should immediately disclose your criminal history to your defense lawyer, even if they don’t ask. I know it sucks and it’s embarrassing, but we can’t evaluate your position in a case without it.
They aren’t trying to use your past against you, they are using your past against you.
I hear that a lot as well. “They can’t use my past against me.” Sit down Mr. Defendant, because in Texas they can and will use your past against you. Prosecutors look for pen trips first because they want to enhance your felony case and make the punishment worse. It gives them a lot of leverage if they can turn your 2nd-degree felony into a first with a prior. But it gives them a whole lot more leverage if you have two pend trips. Then the Prosecutor can high-bitch your case and charge you as a 25-99 habitual offender. I didn’t name the habitual offender enhancement”high-bitch”, so if that offends you just know that existed before I got my law license. “Low-bitch” is 15-99 BTW.
If you’ve been to prison, it doesn’t really matter for what, then the ADA on your case will put you in a different category for plea bargain negotiations. They are going to assume the Defendant is lying and they know that if the case goes to trial the Defendant is way less likely to testify if their pen trip can be brought up on cross-examination. We need to know that stuff. As your defense lawyer I need to find other witnesses who can back up your version of events, because your word won’t as useful as someone without priors.
Prosecutors generally believe that no one goes to prison unless they’ve done some really bad shit, or had enough arrests and cases to work their way through multiple probation plea bargains to violating felony probation to going to prison. Prison is seen as the terminal degree in crime, your PhD or JD if you will. You’ve mastered the art of crime and prison is the reward. That may not be fair, but it is so we have to work through it.
Prior misdemeanors matter as well, especially DWIs. There is a belief that any DWI over 10 years old can’t be used against you. That was the law once, but not anymore. Now any DWI conviction, no matter how old, can be used to enhance your case. Some DWI cases before 85 could have been deferred, and if you were getting DWI cases in the 80’s you really should be Ubering by now. Seriously.
When you don’t tell your lawyer about your criminal history we will give you bad advice, or worse, litigate your case incorrectly. It doesn’t help you hide your past either. We will find out about your past eventually, usually during the first round of plea negotiations when the ADA looks at us smugly and says “so your guy has a lot of history.” We need to have an answer or response for that besides “really, what?”
So be honest, fill out your intake forms, tell your lawyer during the consult if he doesn’t ask, but don’t let your lawyer not know about your prior criminal history. It’s important and we can’t do our job without good information.