The criminal justice system in Illinois is very different from what most might imagine it to be. When it comes to criminal defense in Chicago and other Illinois cities, here are some of the most common misconceptions.
Myth #1: You can talk your way out of it.
Once the police have decided you are the main suspect, nothing you say is going to change their minds. In fact, what you say will likely be used against you. Police can misquote you, either accidentally or intentionally. They can change facts -- for example, concluding the time of the crime was later or earlier if you have a solid alibi at the previously reported time of the crime. They can claim you lied to them. You should always stay silent until you have spoken to your lawyer.
Myth #2: You won't go to jail or prison if it is your first offense; you have a family, or a job.
Many criminal statutes have mandatory prison sentences and the judge cannot sentence you to probation even if he wants to do so. Even when judges can impose a sentence of probation, many do not want to. In addition, almost every defendant has a family, many have jobs, and every offender is a first offender once. However, most judges will go along with a plea agreement. The surest way to acquire a plea agreement for probation is to convince the prosecutor that if there is a trial, he may lose, and even if he wins it is going to be work. This requires that you have a capable defense attorney with a reputation for bringing cases to trial.
Myth #3: The complaining witness or other witnesses must come to every court date.
Only the defendant and the defense attorney have to come to every court date. The prosecution's witnesses are only required to show up for the trial. As a practical matter, in most Chicago courts cases are routinely dismissed if the complaining witness does not show up on the first court date. However, that is not always true, and it is definitely not true in felony court.
Myth #4: That if you ask an undercover policeman if he is a policeman, he must tell you the truth.
I hear this myth mainly from clients in prostitution cases, and occasionally from drug clients involved in sting operations. Police are under no obligation to tell a suspect they are the police if they are acting in an undercover capacity. If they were, undercover operations would be pretty useless.
Myth #5: That your case will be dismissed if the police refuse to let you make a telephone call.
There actually is a law that states "[p]ersons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or in any other reasonable manner. Such communication shall be permitted within a reasonable time after arrival at the first place of custody." 725 ILCS 5/103‑3. In 22 years of practicing criminal law, I have seen it violated many, many times. Unfortunately, the controlling statute does not provide any remedy for people denied this right. In addition, the police usually claim that the person did not ask to make a phone call.
Myth #6: That you will be sentenced more leniently or lightly if you confess and express remorse or say how sorry you are.
My 22 years of experience have shown me that signing a confession and expressing remorse results in a harsher sentence because the prosecutor, confident of a guilty verdict, will be a tough negotiator. In addition, very often the judge will sentence you more harshly because you have removed all doubt as to your guilt. The time to express remorse, if at all, is at your sentencing hearing, never before.
Myth #7: Old convictions can be taken off your record if they are old enough.
This is sadly untrue. Illinois has a few very narrow circumstances under which you can have your record expunged, which is the legal term for having your record erased. Unless you were sentenced to Supervision for a misdemeanor; or 410 or 710 probation under the drug statutes; or sentenced to drug treatment probation, (TASC), and a motion to vacate the judgment was filed within thirty days of your sentencing, you cannot erase your record. If you have a final judgment of conviction, only a pardon from the Governor will allow you to have a fresh start.
Myth #8: Someone who has been arrested or sent to prison many times is likely to have built up some expertise in criminal defense.
I have had clients tell me many times that someone they met in the jail or that they know has a knowledgeable opinion about how to defend their criminal case. I try to be polite about this, but it is ridiculous. If these jail house Perry Masons were so smart they would be out rather than in, or would never have been convicted. Do not talk about your case with other prisoners; do not take advice from your cellmate or your relative who has done time; do not take legal advice from someone who is not a practicing criminal defense attorney. Listening to these individuals is like taking medical advice from another patient in the hospital because he gets sick a lot.
Myth #9: You can withdraw your guilty plea if you change your mind.
If you are thinking of trying to withdraw your guilty plea, you must file a motion to withdraw your guilty plea within 30 days of sentencing. [cite statute] Even if you file the motion within 30 days, you must have a very good reason or your plea will not be withdrawn. For example, if you were under the influence of drugs at your plea, or if your attorney was incompetent, you may be allowed to withdraw your plea. I once represented a woman who plead guilty along with her sister to a murder. When her sister suddenly died, she tried to withdraw her plea and claim that her sister had done everything and she was innocent. Essentially, she had changed her mind because now that her sister was dead she had no problem blaming everything on her. Her request was denied.
Myth #10: Your case must be dismissed if the police do not read you your rights.
I have seen this myth on television at least a dozen times, and I hear it from clients all the time, but it is completely false. The police are only required to read you your rights if they are conducting what is called a "custodial interrogation." In other words, you are in their custody and they are questioning you. If they break this rule, the remedy is that your statement is suppressed, but there is no requirement that the case be dismissed. Recently, I kept his client's videotaped statement out of evidence in a murder trial. However, the prosecution went forward with the testimony of three eyewitnesses, which is completely lawful.
Criminal defendants who buy into the myths discussed above are at a disadvantage relative to defendants who are savvy about Illinois criminal defense law and how the court system actually works. Don't make assumptions about what is best for your case. Talk to an experienced criminal defense attorney as early as possible.