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The Number One Mistake Criminal Defendants Make (And How to Avoid It)

In my years as a criminal defense attorney, I have watched a lot of people make the journey from one end of the court process to the other. I’ve watched them play it smart, and I’ve watched them make a lot of mistakes and do a lot of stupid things that really hurt them. Sometimes, these stupid mistakes result in sentences that are unnecessarily harsh or even inappropriate. Very few of these mistakes involve substantive issues, like the facts to which they testified under oath or not understanding a question that was asked. (Although these things do, of course, happen.) The vast majority of these mistakes involve something so stupid and basic that it amazes me that it even needs to be addressed. But, apparently, it does, so here's the lesson: most mistakes made by criminal defendants all come back to how they present themselves in court.

Shockingly, this is a topic that creates all kinds of indignation. I get, “People shouldn’t judge me by how I look” or ”How I dress has nothing to do with this case.” And while all of that is great in theory, the reality is that how you present yourself makes a huge difference in how the judge treats you. Why? Because the old adage about first impressions is an old adage for a reason: it’s true. So, as a practical matter, ALWAYS ASK YOURSELF: “Do I want the judge to treat me like a thug, or a professional?” Because really, what it boils down to is this:

If you look like a professional, the judge will treat you like a professional. If you look like a thug, the court will treat you like a thug. You have to decide which way you want to be treated.

Many people refuse to take this advice. My favorite “war story” is the one about the guy who showed up for sentencing (on a Possession with Intent to Distribute Marijuana charge, nonetheless) wearing jeans and a t-shirt with a big marijuana leaf emblazoned across the chest. He was sent home immediately to change. (Side note: He came back in jeans and a Tupac t-shirt. He was not the brightest bulb on the tree.) Can you imagine what the judge would have done to him with his original wardrobe? He ended up being an hour late to his sentencing, and the judge chewed him up one side and down the other for being late, but that was still better than what would have have happened had he not changed his clothes.

On the other hand, in the last month I have had no fewer than three judges state on the record that they were impressed with the way my client presented himself/herself by dressing appropriately and being respectful, and as a result they were going a little easier on these clients.

Men should always wear a suit (or at the very least a nice sport jacket or blazer), dress slacks, and a tie. Always. No exceptions. Women have more variety in what they can wear in terms of appropriateness, but I recommend a conservative business dress or “pantsuit”. No cleavage! For some reason, some women think if they flash the “orbs of power” the judge will go easy on them. It sometimes works with the cop who pulled you over for speeding, but a judge will see it as a cynical attempt at manipulation.

Never wear t-shirts, jeans, hoodies, shorts, miniskirts, tube tops, pajamas, sweat pants, sports attire, or halter tops. (Yes, I've seen all of these—including the pajamas—in court.) If you have tattoos and you can hide them, do so. Men should never wear a hat. And I don’t care how “cool” your gangsta hair comb looks to you, get it out. If you’re male and you have the “Lynyrd Skynyrd” ’do (or a mullet!) get it cut before you go to court. Either shave your head if you can pull it off (bald is beautiful on some people!) or get a short, conservative hairstyle. Yeah, it’s not as cool as it was . . . but it’ll grow back when your case is over.

Let me say this again: ALWAYS ask yourself, “Do I want the judge to treat me like a thug, or a professional?”

This whole “presentation” thing goes far beyond how you dress (although that is important). Your attitude (and the attitude of the people who show up to support you) are the most important factor; your clothes are just an outward expression of that attitude. So:

  1. “Yes, sir”.  “No, sir.” Not,  “Uh-huh”  and “uh-uh”.
  2. No slumping, “swaggering”, leaning, shuffling, or strutting.
  3. Do NOT chew gum! (If you are like me and have chronic sinus problems—leading to chronic bad breath if you don’t do something about it—a small piece of spearmint gum that you can discretely tuck into your cheek is fine, as long as you don’t chew it when you are standing before the court.)
  4. Use proper English. It’s “I saw him”, not “I seen him”. He didn’t “get all up in that”, he “started threatening me”. Sentences do not end with, “y’know what I sayin’?” If you want to be treated like a professional—and trust me, you do!—you need to talk like one.
  5. Along those lines: DO NOT MUMBLE!!!! This is my current biggest battle with clients now that I’ve managed to convince them to dress appropriately. If I can’t understand you when I’m two feet away from you, the judge isn’t going to be able to understand you when he’s sitting on his bench clear across the courtroom. Speak clearly and annunciate. The judge won’t care that you “wentacollashngotsaegreesinpliedphysees”, but he will care that you “went to college and got a degree in applied physics.” (Hear the difference?)
  6. Do NOT try to make excuses or blame your actions on someone else. Depending on the judge, it is usually perfectly fine to point out legitimate mitigating circumstances (although I usually recommend you let the attorney do this for you; it’s more credible and less self-serving coming from a third party). But . . . blaming your actions on someone else is going to send a message that you still don’t “get it”. For instance, it’s fine to say, “Your honor, I wasn’t looking for trouble. I was with my friend Mike, he was driving, and he went to his cousin’s house. I had no idea that they were shooting up there. Mike wouldn’t leave, it was 2 a.m., there was a blizzard, and I didn’t have any safe way to go somewhere else. I’m an addict, and eventually I got weak and I got a fix.” It is not fine to say, “It’s Mike’s fault because he knows I’m an addict and he took me to a place where they were shooting up.” The first says to the judge, “I know I’m an addict and I tried to avoid going somewhere that would tempt me, but I ended up trapped in that situation not by my own doing. I nonetheless recognize that I am responsible for my own actions.” The second says, “It’s Mike’s responsibility, not mine, to make sure I don’t shoot up.” Huge difference!
  7. Do NOT make faces at people in the courtroom, try to signal them, or throw gang signs (even when it’s not your turn at the podium) unless the real message you want to send is a message to the judge that you aren’t taking this seriously. This goes for the people who are in the court room to support you: friends, family, community members, and so on. It’s important to bring them, because it shows the judge you have people who are willing to help you succeed, but that will backfire if your dad is back there screaming at the judge and grandma is lobbing f-bombs at the complaining witness.

ALWAYS ASK YOURSELF: “Do I want the judge to treat me like a thug, or a professional?”

If you do that, you’ll avoid the number one mistake criminal defendants make.



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