This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. In Texas, a defendant’s statement is generally not admissible against the defendant if he or she is subjected to custodial interrogation and law enforcement has not complied with the requirements of Miranda v. Arizona and Article 38.22 of the Texas Code of Criminal Procedure. If the defendant is not in custody at the time he or she makes the statement, the statement may be admissible during trial as an admission of a party opponent under Texas Rule of Evidence 801(d)(2). When is a person “in custody”? Whether a person is in custody for the purposes of Miranda or Article 38.22 depends upon a number of factors. Miranda defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” A suspect will generally not be considered in custody if he or she voluntarily goes to the police station to answer questions. In California v. Beheler, the US Supreme Court more narrowly defined custody as “whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Courts may ultimately consider a number of factors in determining whether someone is in custody including: (1) the location of the encounter and whether it was familiar to the suspect, or at least neutral or public; (2) the number of officers questioning the suspect; (3) the degree of physical restraint used to detain the suspect; (4) the duration and character of the interrogation; (5) the language used to summon the suspect; (6) the extent to which the suspect is confronted with evidence of guilt; and (7) whether the suspect initiated contact with the police

If you are searching for a criminal defense attorney on the Internet, chances are that you have either never hired an attorney or have only hired an attorney once or twice in the past. When you search for a criminal attorney online, you quickly find that there is a dizzying number of options. If you or a loved one is facing criminal charges, you are almost certainly worried about what is going to happen next. For the vast majority of people, the next concern is how much representation is going to cost.

Ultimately, you want a criminal defense attorney who is qualified and experienced, who can talk with you and explain things on a “human” level, and who you can trust to work hard to obtain the best possible result in the case. Great salesmanship does not always equal great representation. As a potential client, you need to determine who is a great salesman and who is a great attorney.

Here are some considerations I would recommend to anyone looking for a criminal attorney:

(1) What is the attorney’s experience in criminal law?

In order to get the best possible defense, you need a lawyer who has extensive experience in the criminal justice system. Lawyers who do not regularly practice criminal law are likely not going to be as well-versed in courtroom procedures and dealing with prosecutors as those lawyers who frequent the criminal courthouse. There a few traditional ways to become well-versed in criminal law:

• spend substantial time working for a District or U.S. Attorney’s Office;
• spend substantial time working for or with an experienced criminal defense lawyer; or
• work in solo criminal practice for a long enough period of time to gain the necessary knowledge and experience.

Ask any attorney you speak with what their work experience has been. If none of the above apply, ask that attorney what makes him or her qualified to represent you.

(2) What is the attorney’s trial experience?

Real trial experience matters. In order to make the best decision about how to proceed in a case, an attorney should be able to make educated predictions about what might happen at trial. Lawyers without substantial first-chair trial experience may not have the perspective to realistically advise their clients of how well a case may fare at trial and what the likely outcomes might be. Additionally, if your case does go to trial, you want someone who has stood in front of juries, who understands the law, and who knows how to communicate with jurors.

Ask the attorney about the types of cases he or she has tried as “first-chair” (meaning they actually tried the case themselves).

(3) Does the attorney hold any special distinctions?

As you may have seen, there is a lot of lawyer marketing out there. Some attorney ratings organizations look legitimate, but are nothing more than private, for-profit companies. These ratings may or may not accurately not reflect a lawyer’s true qualifications. Some rating sites offer no meaningful quality controls over the accuracy or legitimacy of the reviews posted. Many other lawyer organizations require little more than a law license and the payment of dues. There are a handful of distinctions that are legitimate indicators of an attorney’s qualifications and status within the legal community. Board Certification by the Texas Board of Legal Specialization is the only distinction recognized by the State Bar of Texas as permitting an attorney to hold his or herself out as a specialist in criminal law.

I also recommend anyone searching for an attorney online be cautious about the following “red flags”:

• Promise-makers – attorneys who make promises or assurances about a particular result at your initial meeting. There are so many variables that are out of an attorney’s control – the judge, the prosecutor, and the evidence in the case, to name a few – that there is good reason to question any attorney who suggests he or she can obtain a particular result before fully reviewing all of the evidence and speaking with the prosecutor handling the case.

• The cheapest lawyer. Cost is a significant concern for most people seeking legal representation. There may be a huge variation in fees that lawyers charge for a given case. What an attorney charges should be based on his or her qualifications, experience, and the complexity of the case, among other factors. A criminal charge is a serious, potentially life-changing event. While cost is always a consideration, make sure that you are hiring someone who is willing and able provide high-quality and experienced representation.

There are a number of excellent criminal defense lawyers in Houston and the surrounding areas. With a little research and self-education, you can sort out who is the “real deal” and who is not. When you do decide to meet with an attorney, do not be afraid to ask him or her hard questions. After all, you are the client, and you should feel comfortable that you have made the right decision.