Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Each year thousands of people are investigated and charged with committing criminal acts. Although some of those charged are innocent, they must still go through the embarrassment of being prosecuted and the time and expense of defending the charges. Physicians are not immune to such charges, and prosecutions have been levied against doctors, some for the media value of a high-profile prosecution. When facing a criminal charge or an investigation, there are some basic “do’s and don’ts” for physicians to consider. In no other area of the law is an attorney’s advice and assistance more needed than in connection with the defense of a criminal charge.
Mistake 1 Interviewing With Police Without an Attorney Present
Physicians should understand the police investigator’s role in the process: The investigator is not a friend and will use efforts to gain information from them to obtain a conviction. Law enforcement interviewers are skilled, and their interviews are calculated and choreographed to elicit information that is helpful to the police investigation. Police investigators are schooled in tactics of interrogation that are unknown and foreign to the average person. However, certain rules of law and standards must be met in connection with police interviews. Criminal defense attorneys are sufficiently knowledgeable in this area to ensure that the investigators do not overstep the legal lines in conducting such interviews. Anytime a law enforcement officer contacts a physician for an interview—whether the physician is told that he or she is being investigated for a crime or simply that the officer wants to interview the physician in connection with an investigation—the physician must resist the urge to talk with any law enforcement official without having an attorney present to ensure that proper procedures are employed during the interview. Even after being arrested, the physician has the right to insist that his or her attorney be present for any questioning. The physician should not answer any questions without his or her attorney being present.
Action Step When requested by law enforcement officials to provide an interview regarding the investigation of a crime, physicians should not submit to an interview without their attorney being present. Physicians should contact their attorney immediately to discuss the matter in detail and have the attorney communicate with law enforcement officials. If arrested, physicians should not submit to an interview without their attorney being present.
Mistake 2 Trying to Talk One’s Way Out of the Problem
Physicians who have violated Mistake 1 should not complicate the situation by attempting to talk their way out of a criminal charge. Often, the authorities have a solid theory as to what they believe happened in connection with a crime. An interview with the physician gives them an opportunity to obtain facts that could strengthen their theory or to obtain information that they can use to disprove the information provided by the physician. This mistake is further complicated if “false” information is provided during an interview. False information can easily be disproved by competent authorities, and many jurisdictions mitigate the punishment for a crime based on not misleading investigating authorities. Physicians should talk with the authorities only after they have consulted with their attorney and the attorney has advised them to provide an interview.
Action Step It is rare for a person to be interviewed by the authorities and then released because the matter was resolved by the information provided during that interview. Physicians should not mislead authorities if they are interviewed, but they should also remember not to make Mistake 1 by talking with authorities without their attorney being present.
Mistake 3 Failing to Assume That One’s Every Action Is Being Watched
In connection with the investigation of a crime, the most telling and damning evidence often comes from the criminal defendant’s recorded actions and words. Physicians who are aware that they are under investigation for or have been charged with a crime must assume that their every action is being watched, filmed, photographed, and recorded. They should not engage in any activities that are suspect or would lead an ordinary person to question their motives in connection with such actions. Often it is small details, innocuous by themselves, that are stacked together to build a compelling circumstantial case for the jury to convict the defendant.
Action Step The actions of physicians who are under investigation or have been charged with a crime are “super suspect.” Such physicians must take extraordinary precautions not to engage in activities that would allow the prosecuting authorities to build or strengthen the case against them.
Mistake 4 Failing to Contact an Attorney Promptly
Once a physician learns that he or she is under investigation for a crime or has been arrested for a criminal charge, the physician should contact an attorney immediately. Failing to do so can be devastating to the physician’s defense. It is imperative that a criminal defense attorney become involved in the process as quickly as possible, since several steps may need to be taken: taking statements of witnesses, collecting or examining physical evidence, taking photographs, and documenting facts. Over time, memories fade and physical evidence becomes lost. Criminal cases often turn on facts that are discovered and documented quickly by counsel.
Action Step Physicians should contact their attorney immediately upon learning that they have been charged with or are under investigation for a criminal charge.
Mistake 5 Misleading One’s Attorney
Misleading their attorney is probably the most common mistake a criminal defense attorney sees their clients make. Despite the fact that the clients come to them for help with arguably one of the most trying and difficult matters they face, the clients are apt to embellish their stories or leave out important facts when relating information to their attorney. Clients seem to feel they must “sell” their facts or defense to the attorney before the attorney can help them. Such action is unwise and often leads to a conviction that may not otherwise have occurred. An attorney cannot effectively represent a client unless the client is completely honest with the attorney. The attorney will tailor the defense to a charge based on the facts and information the client provides. An important, but undisclosed, obvious fact that surfaces during the trial provides the attorney with little latitude to adjust the defense.
Action Step In consulting with their attorney regarding the defense of a criminal charge, physicians should provide complete details and all of the information they have. Physicians should not think that withholding information from their attorney will allow the attorney to provide a better defense to the charges against them.
Mistake 6 Not Taking a Charge Seriously
All criminal charges are serious. Law enforcement officials and government authorities do not pursue charges unless they think there is a reasonable probability of a conviction, and that is their ultimate goal. Physicians should not be confused by a seemingly lackadaisical attitude by the authorities in connection with a crime. Any physician charged with a crime faces the very real possibility of monetary fines and jail time. Additionally, criminal charges are immeasurably damaging to a physician’s reputation. A physician who is under investigation for or charged with a crime should not think that it will go away or that it is a “minor” matter. Many defenses and hearings may be unavailable and waived unless timely asserted in the process.
Action Step Physicians who are charged with any crime should consider it to be a serious matter that needs their full and immediate attention. They should not ignore the charges, especially if nothing has been scheduled in connection with the case by the authorities.
Mistake 7 Failing to Guard One’s Credibility
In a criminal case, a defendant must attempt to maintain credibility with the court and the jury. Once credibility is lost, it is difficult to obtain a successful result in a criminal trial. Physician defendants should guard their credibility at all costs. They should not make any false or misleading statements at any stage of the process—from the investigation of the charge to the trial of the case. They should show respect to the court, to the jury, and to the solemn nature of the process at every stage of the proceeding. Prosecutors are skilled at exploiting inconsistencies from criminal defendants. For this reason, many criminal defendants decline to testify at trial. However, physicians who decide to testify based on the advice of their counsel must do so fully, truthfully, and unevasively in order to avoid a loss of credibility with the finder of fact (either jury or judge). However, such action is never recommended without substantial preparation as to what the physician may expect upon cross-examination from the prosecution.
Action Step Credibility must be guarded and maintained throughout the entire criminal process from investigation through trial. Physicians should not provide any false or misleading information that would allow the prosecution to destroy their credibility. They must remember that they are not required to provide information to the authorities or testimony at trial.
Mistake 8 Failing to Follow the Advice of Counsel
In a criminal proceeding, the attorney is the expert who knows the law and how the process works. For physicians, this means that their attorney will guide them through the process while protecting their rights. Although the attorney will not make decisions for them, he or she will counsel and advise physicians so that they can make the best decision for their particular situation. Many defendants have been convicted of criminal charges based on their failure to follow the advice of counsel on matters related to the process. Criminal proceedings are both complex and technical. Often, clients feel that if they can just “tell their side of the story,” the jury will rule in their favor. This is rarely the case in criminal proceedings. Failing to follow the advice of counsel in a criminal proceeding can quickly lead to dire results, including substantial fines and even imprisonment.
Action Step Physicians should establish a relationship with a knowledgeable attorney in whom they have confidence. They should trust their attorney to provide them with advice and follow that advice, especially in connection with decisions regarding the proceedings of a criminal matter.
Mistake 9 Failing to Consider Plea Bargaining to Attempt to Settle
Most criminal matters are resolved without a trial through a plea bargain resolution of the case. When the weight of government bears down on a single criminal defendant, pressures mount to unimaginable levels. Many defendants do not feel able to expend the physical, mental, and emotional costs necessary to defend a criminal case. But trials are not only costly, they are also uncertain in their outcomes. Many defendants simply do not think they can “roll the dice” with the high risk of jail sentences hanging in the balance. Therefore, it is always wise for physicians to have their attorney explore the possibility of resolving the case through a plea bargain. Plea bargains come in many forms. Often cases are settled on a guilty plea for a lesser included offense, or for an agreed upon sentence and fine that is then entered by the court. The more serious the criminal charge, the more risk that is involved in the potential outcome. Plea bargains offer certainty in an uncertain process. A guilty plea, advised by counsel, may not be exactly what a defendant would like, but it does provide a resolution to the matter without the risk of greater punishment following a potential conviction at trial.
Action Step After counsel has conducted a thorough investigation of the facts and has researched the law applicable to the case, the physician should discuss the reasonable probabilities of the outcome of trial and probable sentences if convicted. Based on these reasonable probabilities, a plea-bargaining process should be explored to attempt to settle the case if counsel so advises.
Mistake 10 Failing to Comply With Postconviction Requirements
Often after a criminal case is resolved, a conviction will result in a period of probation, house arrest, or parole. Courts place many conditions on such programs, but such conditions invariably contain requirements that the defendant obey all laws and timely pay all fines and/or court costs or restitution as ordered by the court. Defendants who have been placed on probation should not assume that the process governing their imprisonment will be the same as the one afforded to them for the initial process. Many jurisdictions require a lesser burden of proof to revoke probation than to convict on an original charge. Those who are on probation must be overly cautious in complying with all the terms and requirements of their probation.
Action Step Physicians who have been placed on probation should take all of the steps required to complete the required terms of their probation. They should not engage in any suspect activity or become involved with anyone who is involved in criminal activity of any kind, since such involvement will invariably lead to a prison cell.
Being investigated for or charged with a crime is a daunting and foreign experience. For physicians, it is likely to affect all aspects of their life. Physicians who find themselves in this situation should immediately employ counsel to guide them and protect their rights throughout the process.
- H. Glick, Courts, Politics and Justice (McGraw-Hill 1983)
- L. Hall, Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure (West Publishing 1969)
- G. Spence, How to Argue and Win Every Time (St. Martin’s Press 1995)
Phil D. Mitchell, Esq.
Peer reviewed by:
Gregory A. Reeves, Esq.