Why Doing Nothing Is Often The Best Choice In Defense Law

17 August 2021
 Categories: Law, Blog

When a client meets with a defense attorney, they often want to know what their lawyer is going to do about the accusations they're facing. It's natural to want to actively defend yourself from criminal charges. However, a defense law attorney will often focus on the importance of doing nothing. Let's look at why that is and how it might work.

Burden of Proof

The central reason for a lawyer taking a relatively passive approach is because the burden of proof sits with the prosecution. American law demands the prosecution explain why they filed charges. Similarly, it demands they collect the evidence and prove their claims about the defendant.

As the defendant, you don't have to do anything. It's well within your rights to tell the judge the case is garbage and move for the court to dismiss the case. Even if a defense attorney doesn't think there's a great chance of a dismissal, they'll often make the motion to see if they can resolve the matter faster.

Your Right To Remain Silent

An old saying asserts that it's better to stay silent and be thought a fool than to open your mouth and prove it. Fortunately, the law recognizes your right to remain silent. If police officers or prosecutors are questioning you, the most you need to do is invoke your right to remain silent and demand counsel. Do nothing and say nothing else until your defense law attorney arrives and advises you.

The Problem With Affirmative Defenses

The opposite of doing nothing is asserting an affirmative defense. When a defendant acts affirmatively, they're trying to provide evidence that backs specific claims. Suppose a defendant says they were in a different state at the time of the alleged crime. They could then provide evidence to back this statement.

If you have lots of evidence to make it work, an affirmative defense isn't necessarily a bad idea. However, things will usually turn ugly if your affirmative defense isn't airtight and backed by airtight evidence.

Worse, an affirmative defense can backfire if the prosecution clearly refutes it. If a defendant asserts they were out of state but video proof shows them three blocks from the scene of the crime at the time, that's a problem.


Another argument for doing nothing is that it reduces the odds of committing obstruction of justice. People go to jail for covering up crimes because the prosecution may call the cover-up an additional crime. It's typically hard to commit obstruction as a defendant if you do nothing.