Talk to the cops? Are you crazy?

I have the honor of appearing on a few court-appointed lists in the area. This means I represent clients for misdemeanor, felony, and child protective/ delinquency cases. One of the perks of my job is that I get to read a lot of police reports, and talk to police officers and detectives a lot. The reason why I say this is a “perk” is that it makes me look at the arguments law enforcement would use if the case goes to trial, and how police psychology works. It’s actually quite underhanded and manipulative once you break it down into its pieces. Sometimes potential clients call me with the following scenario: “I was at a party last weekend, with a lot of friends. My friends tell me that Tom says that I committed a crime against him, and that he called the cops. Should I talk to the cops?” My advice is always “No, you have no obligation to talk to the cops.” And then I tell the potential client “if the cops call you, tell them you won’t be questioned without a lawyer present.” 1.       The format: Police reports are written in a good guy/ bad guy format. It’s like a play. Usually –and I can’t think of a time I have seen it any other way --  the person who calls the cops is the “good” guy. Once the cops identify the rest of the players in the play, they will try to finger one person  (or possibly a group of people, who end up as co-defendants) as the “bad guy.” This is the beginning of how the mind set of law enforcement works. It’s easier to sell the story to a jury if the play is simple. Good guy / bad guy is a scenario we have all seen, and the jury will want vengeance, justice, or something, for the good guy. This is how a conviction is made.  Also, police and prosecutors know their audiences: it is the general public. What is the general public’s IQ? How does the general public feel about victims and justice? 2.       Corroboration: Talking to the victim,  or alleged victim as I like to call him/her, gives the cops a list of other people to talk to, witnesses, before they talk to the person they’re trying to cast in the “bad guy” role.  This is how under-handed the police mindset is, as talking to other witnesses first becomes a set-up for the defendant to put his own picture in the frame, or cast himself in the starring role. It also gives police an inside edge, as this leads to a cross-examining of the defendant from their first contact. This part of the officer’s job. And it works in their favor as talking to other witnesses gives “corroboration” to the alleged victim’s story. If the witnesses back up the victim’s story, then the cops have some corroboration, and the victim’s story sounds more like it would stand up in court. Back to selling this story to a jury: if there’s a witness who says the same thing as the alleged victim, then the jury will have more sympathy toward the alleged victim, and it is easier to get a conviction. 3.       Contacting the defendant: The scene is now set, the cops have a victim, and some witnesses. Now all they need in the play is the bad guy. Once the cops call the potential defendant, they begin with what is called a “leading” question. Sometimes these are called open-ended questions. It’s the sort of question an interviewer uses on a job interview, such as “where do you see yourself in five years?” it doesn’t lead to a “yes” or “no,” instead it leads to more of an explanatory answer. Or, in the potential scenario of being pulled over, it sounds more like this “How fast did you think you were going?” This leads to an answer that can be incriminating such as “I’m not sure, but I think was going about 35.” Except in our “play,” as written by the police, it sounds a bit more like “Hi, Jim. My name is officer Bishop with the County sheriff’s office. Tom talked to us, and said you committed a crime against him.” This open-ended statement might lead a person to possibly deny the assertion, or to try to correct the cops. The problem is that any other statement a potential defendant makes at this point can be used to cast him in the role of bad guy, no matter the answer. Usually by this time, again, cops have talked to other witnesses, and so once the defendant says something, an officer can counter with “Well, Mr. Johnson said you went after Tom with a carving knife.” Here’s the corroboration coming to assist the cops, and further explanations by defendants are only helping the police. Also, the next thing a defendant says – even if it is the truth -- may lead to a credibility problem. The options are to either a) deny what has been said by Mr. Johnson, or possibly point the finger at someone else; or b) deny what was said totally. (Option (c) is also available, however). At the first contact by police, asserting an attorney’s assistance would be helpful. Instead, defendant should answer, “I’m sorry officer, but I can’t talk to you without my attorney present.” That’s option (c), which no one seems to take! Either way, the cops have an alleged victim, and a corroborating witness who already say nearly the same thing. But according to the defendant, those two are both liars now. That won’t seem likely to a potential jury, will it? This is just grist for the mill of the prosecution. Think again of the audience, which is the general public. Who should the jury believe: the defendant – or all of the possible ways to agree with the prosecution: instead the jury can believe the alleged victim, officer testimony, credible witness testimony . . . Police also know that facts are confusing – the victim and one or two witnesses usually get a few facts wrong, but this still can be OK to a jury. The victim is sympathetic; so it makes sense what with being attacked that the victim might get a few facts wrong. 4.       The defendant’s natural response woks against him. This is where manipulation also comes into play, in case it wasn’t used already when contacting the defendant. Most people are raised to think that the cops are good people, and that working with the cops will help everyone (even when being questioned about something). A second natural response happens when police contact a suspect. The suspect wants to “set the record straight” about what really happened. This works against the suspect as well. The police aren’t interested in getting it straight, they are interested in the “good guy/ bad guy” scenario. Back to my job: I can’t tell you how many times I have had clients tell me “I was respectful”--  “I didn’t make a scene,”-- or “I cooperated.” Even clients with fairly extensive criminal records tell me this, when their prior involvement with law enforcement should have them knowing better. Who cares whether you cooperate with the police? The police will do their job whether you cooperate or not. And that’s what they are paid to do, so why help them to do their job? I don’t see the cops coming along to help you do yours, now do I? 5.       The fact that cops wear uniforms works in their favor. It’s intimidating, for one. Second, it tends to lead to obedience on the part of defendants. Clients /defendants know that cops have uniforms, guns, and jails at their disposal. So it’s easier for cops to get compliance, and so defendants/ clients to give in to authority: the alternative can be scary – even if you are innocent. Third, it is de-humanizing. It’s not a guy who happens to be a cop, it’s a cop! People see the uniform, but not the individual in uniform. 7.

What is pleading the fifth? That's for defendants, not witnesses, right?

Q: what is pleading the Fifth? Isn't that only for defendant? I don't have a subpoena yet, but I think I will have to testify. The problem is, I said things to the police while I was angry. Now my fiancee is being charged, I don't want to testify against him, I love him.

A: Hi, thanks for your question.
The way I understand your question is: You gave an earlier statement to the police, your fiancee was  charged as a result. Now, the court is trying to see whether the charges against your fiancee are proven beyond a reasonable doubt, and to do that you may be called to testify.

The problem you are facing is that if you are called to testify truthfully, and do not, will the prosecutor decide to charge you with perjury (which is the technical name for making a false statement)? Perhaps you should seek a one-to-one consultation with an attorney to see what else you need to defend against.

"Pleading the fifth" is not only available to defendants, but also to witnesses, who may be chargeable as defendants.

Again, I suggest you talk to an attorney (preferrably not the same attorney your fiancee has) for more advice.

Yours,
Nancy

Miranda rights: Can Holmes's statements to police be used against him?

James Holmes's lawyers are arguing over whether his statements to police "It's just me," can be used against him. He was questioned by police shortly after the shooting in Aurora, CO, in July 2012, where's he's alleged to have shot theater goers at a movie showing.

Article here. 

It was two hours later that Holmes was read his Miranda rights, which would have alerted him to the fact that statements could be used against him.

My take on this is that the prosecution will argue that a public safety exception applied, since they were wondering if another shooter was present.The broader issue is when does Miranda rights apply? Generally, Miranda rights apply when you are in police custody, or custodial interrogation. So if a suspect isn't in custody, would Miranda apply?

The defense attorneys admit that this is a side issue, however, because they're not denying he was shooting in the theater. Instead, their defense will involve whether the defendant was sane at the time of the shootings or not.

What should I do if I get pulled over?

If you get pulled over, remain calm and remember your rights.

1. Don't admit to anything. If the officer asks "You know why I pulled you over, don't you?" answer "No." Aside from being a leading question, this question also affects your Fifth Amendment right (to not incriminate yourself). See related material here. 

2. Don't consent to a search. An officer can do a search without a warrant in some situations, based on what's called "probable cause." This means that if they think it's likely (more than a reasonable suspicion) that evidence of a crime can be found in your car, they can search. Or it could just be that the officer who wants to do the search is bored, a little suspicious, or wants to act like a jerk. Make it clear that you're not consenting to any search at all. Refusing to let the search happen doesn't mean you're guilty, it means you're aware of your rights, like the Fourth Amendment.

3. If you feel so inclined, you can videotape your traffic stop. It's not illegal to videotape police, although it may make the atmosphere feel more confrontational. Again, stay calm and remember your rights. You can also ask (politely, of course) for the officer's badge number and name, or patrol car number. The police are the only game in town, which means they keep doing their job, and we keep paying them, but we have very little say as "customers" of their service. But we can still report their behavior to their superiors, or the media, if need be.

4. An officer can ask for your driver's license, and proof of registration. Michigan has a statute on consenting to this as a condition of being allowed to drive.

5. If you're suspected of driving while intoxicated, an officer may ask you to do a roadside sobriety test. You are free to refuse the tests. What the officer is looking for is probable cause to arrest you. This means that the less you say or do that shows evidence of intoxication, the better off you are. So refuse (politely, of course) to perform the tests. More information here.
You won't get a lighter sentence because you were nice to the officer and did the tests. Doing the tests just gives more evidence, and leads to probable cause = you're arrested.

6. Roadside breathalyzer (PBT). Michigan has an implied consent law. This means that if you are arrested (not just pulled over) for driving while intoxicated, you are considered to have given your consent to have your blood alcohol content (BAC) test. However, the PBT at the car can be refused, and refusing will result in a fine and/or civil infraction. If you are arrested, however,  attempting to refuse the chemical test at the station can have serious consequences.

When should you talk to the cops?

When should you talk to the cops? Never. Usually,the way you answer the questions of a police officer affects your Fifth Amendment Rights . . . so perhaps you shouldn't answer it. One of the purposes of the Fifth Amendment (which says you can't be compelled to be a witness at trial against yourself) is to protect innocent people who would otherwise be convicted by evidence they might give. (citation omitted).

 1. It can't possibly help if you talk to the police, or attempt to talk your way out of getting arrested. What you tell the police can't be used to help you at trial, even if it's exculpatory, because it's hearsay, and won't be in evidence.

2. Even if you want to admit that you did something wrong, why do it now? You'll get the chance to admit to guilt later, once you're represented by an attorney, who can help you get a plea deal, and present things in the best light possible. Watch this video to get a law professor's take on this. It's long, but worth it, and it continues in a few more videos. My blog posting here is essentially a re-cap of that video.

3. Even if you're innocent, and you think it's OK to talk to the police, you could tell a lie accidentally that will make you look guilty. It's a stressful situation when you talk to the police. Even if you only tell the truth, you might give some information to the police that can end up helping convict you.

 4. Even if you only tell the truth, what's the guarantee that the officers will recall what you said with 100% accuracy when (or if) this gets to a trial? Even if the officer's not correct when he re-tells your story, the jury will probably believe the officers, and not you.