What to Do If You’re Under Criminal Investigation (Before Charges Are Filed)
Being investigated for a crime can be stressful, leaving you with anxiety and uncertainty even though you have not been arrested or formally charged. You may receive a call from a police detective, discover that investigators have contacted your employer or family members, receive a subpoena, or learn that a prosecutor is asking questions about you. You may not know whether you are a suspect, a witness, or simply someone who has information investigators want.
The period before charges are filed can be extremely important. Decisions made during an investigation may affect whether charges are ultimately filed, what charges prosecutors pursue, and what evidence will be available if a criminal case goes forward. At Dupée & Monroe, P.C., our Goshen criminal defense attorneys represent people accused of felonies and misdemeanors throughout Orange County and the Hudson Valley. If you believe you are under criminal investigation, taking the situation seriously and obtaining legal advice early can help protect your rights and your interests in achieving the best possible outcome.
How to Know if You Are Under Criminal Investigation
Law enforcement does not necessarily have to tell you that you are the subject of an investigation. In fact, investigators may contact you without explaining the full reason for their questions.
A detective may ask you to come to the police station to “clear something up,” request an interview, or ask for your version of events. Police may also contact people who know you, review surveillance footage, obtain records, or seek information from businesses and other organizations.
Another indication can be a subpoena. A subpoena may require a person to provide documents, records, or testimony. If you receive one, do not assume that compliance is optional or that you should respond without first understanding what is being requested.
A grand jury investigation is another possibility. In New York, a grand jury determines whether sufficient evidence exists to indict a person on felony charges. Grand jury proceedings are generally conducted without a judge present, and the rules governing participation are different from those that apply at a trial.
The fact that police or prosecutors are investigating does not mean you will be charged or that you are guilty of anything. It does mean you should take the situation seriously.
Should You Talk to the Police If You Are Under Investigation?
One of the most important steps is to avoid voluntarily participating in an investigative interview before consulting a criminal defense attorney.
People often believe that cooperating will demonstrate innocence. They may think they can answer a few questions, explain a misunderstanding, or provide information that will cause investigators to move on. The problem is that even an innocent person’s statements can be misunderstood, taken out of context, or used to develop additional evidence.
You generally do not have to volunteer information simply because an investigator asks for an interview. If you are contacted, you can remain polite while declining to answer questions until you have spoken with an attorney.
This does not mean you should lie to investigators, destroy evidence, or obstruct an investigation. Instead, it means you should understand your legal rights before deciding whether to provide information.
If you have already spoken with investigators, do not assume that the situation is hopeless. Tell your attorney what was discussed, as accurately as possible, so counsel can assess the potential significance of the conversation.
Contact a Criminal Defense Attorney Before Charges Are Filed
Waiting until an arrest occurs is not always the best approach. A criminal defense attorney can become involved while an investigation is still underway, before the prosecution has committed to particular charges.
Early representation may allow counsel to communicate with investigators or prosecutors, determine what is known about the allegations, and advise you about how to respond to requests for interviews or documents.
In some circumstances, an attorney may be able to present information that changes the prosecution’s understanding of the case. Depending on the circumstances, early advocacy could help prevent charges, reduce the seriousness of potential charges, or position the defense more effectively if charges are eventually filed.
There is no guarantee that an attorney can stop an investigation or prevent an arrest. The value of early representation is that it allows decisions to be made strategically rather than reactively.
Do Not Delete, Destroy, or Alter Potential Evidence
If you believe you are being investigated, preserve potentially relevant evidence. Do not delete text messages, emails, photographs, videos, social media posts, financial records, location information, or other materials simply because they might appear unfavorable.
Deleting or altering evidence after learning about a potential investigation can create additional legal problems. It can also destroy evidence that might ultimately help the defense.
Instead, preserve the information in its existing form and allow your attorney to determine what may be relevant. If you have security camera footage, photographs, messages, receipts, GPS information, or other records that could establish where you were or what occurred, tell your attorney about them.
Evidence can disappear quickly. Surveillance systems may automatically overwrite recordings, phones may lose data, and witnesses may forget details. Early identification and preservation of favorable evidence can therefore be extremely important.
Avoid Discussing the Investigation With Other People
You should also be careful about discussing an investigation with friends, coworkers, acquaintances, or potential witnesses.
Statements made during casual conversations can later become evidence. A person who hears your explanation may remember it differently from how you intended it, and messages or social media posts can create permanent records of conversations.
This does not mean you should isolate yourself or refuse to speak with your attorney. Communications with your lawyer are treated differently because attorney-client privilege can protect confidential legal communications under applicable circumstances.
Your attorney can also advise you about how to communicate with potential witnesses without creating unnecessary problems.
Be Careful With Social Media
Social media can become particularly important in criminal investigations. Investigators may review publicly available posts, photographs, videos, comments, location information, and other online activity.
A seemingly harmless post can become significant when viewed alongside allegations in a criminal case. Posting about the investigation itself can also create evidence that prosecutors may later attempt to use.
If you believe you are under investigation, do not post about the allegations, investigators, witnesses, potential evidence, or your legal strategy. Do not threaten or harass anyone involved in the investigation.
At the same time, do not begin deleting old posts simply because you are concerned about what investigators might see. Talk to an attorney first about preserving and handling potentially relevant electronic evidence.
If Police Ask to Search Your Home, Car, or Phone
Searches raise important constitutional issues. Depending on the circumstances, police may need a warrant, consent, probable cause, or another recognized legal basis to conduct a search.
If an officer asks for permission to search your property, you generally do not have to voluntarily consent simply because the officer asks. You can state that you do not consent to the search and contact an attorney.
Do not physically interfere with officers or attempt to prevent a lawful search. If police proceed despite your objection, remain calm and make a note of what happened for your attorney.
Digital devices present additional complications. Whether police can search a phone or access particular digital information depends on the circumstances and applicable constitutional and statutory rules. If investigators seek access to your electronic accounts or devices, obtain legal advice before voluntarily providing access.
If You Receive a Subpoena
A subpoena should never be ignored. It may require you to appear and testify, produce documents, or provide other information.
New York law provides mechanisms for issuing subpoenas to obtain witnesses and physical evidence in criminal proceedings. A subpoena may also arise in connection with a grand jury investigation.
Receiving a subpoena does not necessarily mean you are being accused of a crime. You may be a witness or someone believed to possess relevant information. However, if your own conduct could potentially expose you to criminal liability, you should consult an attorney before responding.
New York law gives certain individuals who are the subject of a grand jury proceeding a right to testify before the grand jury under specified circumstances. That right has procedural requirements, including timely written notice to the district attorney before an indictment or prosecutor’s information is filed.
Because these rules are technical and deadlines can be short, a person who receives a grand jury-related notice should obtain legal advice promptly.
If You Are Asked to Testify Before a Grand Jury
A grand jury is not a trial. Its role is to determine whether there is sufficient evidence to bring an indictment. At least 12 grand jurors must vote for an indictment, while insufficient evidence can result in a “no true bill.”
If you are called as a witness, the legal issues can become complicated if your testimony could potentially expose you to criminal liability. New York law provides specific rules concerning immunity and attorneys for certain grand jury witnesses. A witness who signs a waiver of immunity has a right to have an attorney present in the grand jury room under the circumstances specified by CPL § 190.52.
Do not assume that appearing before a grand jury is simply an opportunity to explain your side of the story. Discuss the subpoena and proposed testimony with a criminal defense attorney first.
Do Not Contact Alleged Victims or Potential Witnesses About the Investigation
Another important precaution is avoiding direct contact with alleged victims or potential witnesses about the investigation.
Even if your intention is simply to explain a misunderstanding or ask someone not to become involved, the communication could be characterized differently by investigators or prosecutors. In some circumstances, contacting a witness could also create allegations of intimidation, harassment, or tampering.
If you believe a witness has information that could help your defense, tell your attorney. Counsel can determine an appropriate way to investigate and preserve that information.
Preserve Evidence That Supports Your Side of the Story
People under investigation naturally focus on what prosecutors might have against them. It is equally important to identify evidence that supports the defense.
This could include surveillance footage, text messages, emails, photographs, financial transactions, employment records, medical records, travel information, GPS data, or witnesses who can establish what happened.
Make your attorney aware of potentially favorable evidence as soon as possible. Counsel may be able to take steps to preserve evidence before it disappears.
A criminal defense investigation can also involve interviewing witnesses, examining the location where an incident allegedly occurred, reviewing available records, and investigating inconsistencies in the allegations.
Understand That Investigations Can Lead to Different Outcomes
An investigation does not necessarily end in an arrest. Prosecutors may decline to bring charges, determine that additional investigation is necessary, or pursue charges different from those initially contemplated.
If charges are eventually filed, the defense process begins in earnest. New York’s criminal procedure system provides for discovery, motion practice, hearings, plea negotiations, and potentially trial. Discovery is the process through which the defense obtains evidence and information needed to prepare the case, while motions can be used to seek relief such as suppression of evidence or dismissal.
Current New York discovery law requires prosecutors to disclose specified materials to the defense, including evidence and information in the prosecution’s possession or control. The timing and scope of those obligations are governed by CPL Article 245.
Early preservation of defense evidence remains important, however. Discovery is not a substitute for conducting an independent investigation.
If You Believe You Are Under Investigation
The most important principle is to avoid making the situation worse while you determine what is happening. Do not panic, attempt to investigate the investigators yourself, destroy evidence, or post about the situation online.
Instead, consider taking these basic steps:
- Contact a criminal defense attorney before agreeing to an investigative interview or providing potentially incriminating information.
- Preserve potentially relevant documents, communications, photographs, videos, and electronic information.
- Do not contact alleged victims or potential witnesses about the allegations without first obtaining legal advice.
- Carefully preserve and review any subpoena or other legal document you receive.
- Avoid discussing the investigation publicly or on social media.
These steps cannot guarantee that charges will not be filed, but they can help preserve your legal options and prevent avoidable mistakes.
Frequently Asked Questions About Criminal Investigations in New York
How can I tell if I am under criminal investigation in New York?
You may learn about an investigation through contact from police or prosecutors, requests for an interview, a subpoena, or information that investigators are contacting people connected to you. However, law enforcement does not necessarily have to tell you whether you are a suspect.
Can I refuse to talk to police if I am under investigation?
You generally have the right to remain silent and can consult an attorney before answering investigative questions. You should not lie to investigators or obstruct an investigation, but you do not have to assume that answering questions without counsel is in your best interest.
Should I hire a lawyer before I am arrested?
If you have reason to believe you are the subject of a criminal investigation, consulting an attorney before charges are filed can allow you to receive advice before making statements, responding to subpoenas, or taking other actions that could affect the investigation.
What should I do if I receive a grand jury subpoena in New York?
Do not ignore it. Contact a criminal defense attorney promptly and provide the attorney with the subpoena. Depending on the circumstances, New York law may provide important rights concerning grand jury testimony, immunity, and counsel.
Can a criminal defense lawyer stop charges from being filed?
An attorney cannot guarantee that prosecutors will decline to bring charges. However, early representation can allow counsel to investigate the allegations, communicate with prosecutors when appropriate, preserve favorable evidence, and address potential legal issues before the investigation develops further.
Contact Dupée & Monroe, P.C. About a Criminal Investigation in Orange County
Being under investigation can be just as serious as facing an arrest, even when no charges have been filed. The choices you make during this early stage can affect the evidence available to the prosecution, the evidence available to the defense, and the legal options that may be available later.
Dupée & Monroe, P.C. represents people accused of felonies and misdemeanors throughout Orange County and the Hudson Valley. If police or prosecutors have contacted you, you have received a subpoena, or you believe you may be under investigation, contact Dupée & Monroe, P.C. as soon as possible. Early legal representation can help you understand what is happening, protect your rights, preserve important evidence, and prepare for whatever comes next.
