Taking On Some Common Myths About Criminal Defense

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Fictional crime shows on television are undoubtedly popular and entertaining. In order to wrap up the story in the hour (minus commercials) allotted, however, scriptwriters must often take artistic liberties with the reality of crime and punishment in the United States. In the real world, prosecution of a criminal case is a complex, confusing and often frustratingly slow process.

Having obtained their information from television or the Internet, individuals charged with crimes sometimes hold seriously mistaken beliefs about criminal law and procedure. The following are just a few of the more common criminal defense myths we have encountered, with the facts about each.

Common Myths About Criminal Defense The defendant always gets off if there is no fingerprint or DNA evidence

Undoubtedly, this type of so-called “forensic” evidence is crucial in many cases. However, there are often other ways in which a defendant’s guilt can be proven. In some cases, this is due to presumptions in the law. Thus, for example, a defendant may be convicted of possession of illegal narcotics even if they were hidden without the defendant’s knowledge by another occupant of his house. Despite regularly heard criticisms that it is inherently unreliable, eyewitness testimony is often sufficient for a conviction. Surveillance footage from security cameras at or near the scene of the crime can also be highly persuasive.

A case must be dismissed if the police fail to give “Miranda” warnings

Even if they have never been arrested, many regular crime show viewers can recite these warnings from memory. However, charges are not always dismissed solely because the police failed to properly “Mirandize” the defendant.

First, any statements the defendant made before he or she was in legal custody are admissible without the warnings. Even if a defendant’s statement and associated evidence (for example, the location of a murder weapon) are found to be inadmissible on Miranda grounds, the charges are not automatically dismissed. Forensic data, witness testimony or other evidence may still be adequate to support a conviction.

Juries always believe a defendant is guilty if he or she doesn’t testify

By nature, juries are unpredictable. After all, they are simply groups of strangers called upon to decide a defendant’s guilt or innocence. The judge will instruct the jury as to applicable law, and the jury is then expected to apply that law to the evidence presented. Typically, the judge will instruct the jury not to draw any conclusions from a defendant’s decision not to testify.

Even the most conscientious juror may be influenced by a defendant’s election to remain silent. However, by making themselves subject to cross-examination, defendants may do more harm than good. The decision is an important one and should be made only after consulting with defense counsel and weighing the pros and cons.

If a defendant loses at trial, there is always a right to appeal 

A defendant’s appeal rights are never a substitute for presenting the most persuasive case possible to the jury. First, even a successful appeal does not automatically mean a new trial. Further, an appellate court typically considers only a written a transcript of the trial and cannot judge witness credibility. Finally, except in rare cases, the appeals court may only determine whether errors of law occurred.

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Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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