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.

Q: How do I get rid of a misdemeanor on my record? Michigan law Q &A

Q: I had a conviction in 2008 for a traffic offense. I'd prefer to have that removed from my record, is there a way I can go about this? 

A: Yes, you can do this. The process is called "expungement," or also a "motion to set aside." The relevant law can be found here.

You have to apply for this in the county where the conviction happened. To meet the statutory requirements, it has to be more than 5 years since the offense. If your conviction was a misdemeanor, you can't have more than 2 misdemeanors (and only can set aside one) ; if your offense was a felony, you can't have any other felony offenses.

It does get a little more technical than that, so I hope that your criminal record isn't too involved, and in any case I hope you seek separate legal advice before you request this motion.

It also helps - a lot - to add evidence to your motion of your current good character. In other words, you've learned your lesson, and you are not likely to continue to break laws, and you won't be a concern to the legal system.

You also mention in your question that this was a "traffic offense." I am sorry to say that some types of criminal convictions can't be set aside under the statute, and convictions for drunk driving are one of those - so if you were convicted of impaired driving, operating under the influence, etc., your motion will fail. Again, seek separate legal advice before  you begin, even if you apply for the motion without a lawyer.
Yours,
Nancy

Michigan news: Roadside testing to include drug testing (if impairment is suspected)

But is it accurate? Answer unclear, ask again later. 

The pilot program is expected to last for a year. If a driver is suspected of impaired driving, a specially-trained officer can use a handheld device to test that person's saliva for the presence of certain drugs.

Drugs that can be tested for include amphetamine, benzodiazepines, marijuana/cannabis, cocaine, methamphetamine and opiates.

Article here. 

Facing a misdemeanor? How serious is it: potential penalties from misdemeanor charges

The thing is that a lot of commercials for criminal defense use a "scare tactic" to try and influence you. You know, like the "you just blew $10,000" billboard (which isn't even done by a defense attorney!) But it you are pulled over for driving under the influence (or OWI, etc.) it can be a misdemeanor.

So what does the term "misdemeanor" mean? Why is that different from a felony? Will a felony always be treated as a federal crime?Are misdemeanors not serious at all? Can a felony have a lower penalty than a misdemeanor?

The answer is: it depends.

A misdemeanor can have a variety of penalties attached to it. Same thing for a felony.

Misdemeanors are separated into types. Some types are for violations of a local ordinance. Others fall in the 93-day category, which means the judge can't sentence beyond 93 days in jail, and/or a $500 fine (plus court costs). Other misdemeanors are less than one year. The more serious misdemeanors (called high Court misdemeanors) can have up to 2 years as a possibility. As a result, these are transferred to Circuit Court, as the judges in District court can't sentence that much time (hence the name "high Court"). 

Examples of 93 day misdemeanors are assault and battery, driving under the influence (first offense), and retail fraud. Examples of one-year misdemeanors include larceny (property valued at $200 or more but less than $1,000), retail fraud in the second degree (shoplifting), and intentional discharge of a firearm (but without intent to injure). High court misdemeanors are punishable by up to two years in prison or a fine up to $2,000, or both. High court misdemeanors include indecent exposure and negligent homicide (by vehicle).

Can a misdemeanor have a higher penalty than a felony? Yes, but only in some circumstances. The thing is, the circuit court judge may have a higher sentencing ability (beyond a year), but that doesn't mean that the judge will use the maximum sentence every time. The district court judge, on the other hand, can still go up to one year. So for example, let's use a defendant who is charged with DUI second, which can have a year penalty. District Court judge can give that guy up to a year  in jail, and very well might. Same defendant a few years later would face a felony charge of DUI third, which can go much higher, from 1 to 5 years. But that higher judge might be sentencing less than the district court judge. Just because the higher judge can sentence higher doesn't mean he or she will. 

It's all fiction: Slaying suspect says note was outline to movie script, not a plot to killing

After police found a note that appeared to detail Jose Hernandez, her ex-boyfriend’s killing, Maryann Castorena told investigators it was only the outline of a book she planned to write.

Later, she told police it was a movie script based on an overheard conversation.

Article here. (via mlive.com). 

In the "deplorable defenses" file: Man claims toddler initiated sexual contact

APPLETON, WIS. — A man who claimed his 3-year-old daughter initiated sexual contact with him in 2012 was sentenced Thursday to 12 years in prison after a judge ordered he remain behind bars long enough for his child to grow up without being re-victimized.

Article here. 

The 39-year-old man also was sentenced to eight years of extended supervision and ordered to have no contact with the girl or minors without prior approval. In June 2013, he pleaded no contest to first-degree child sex assault, a felony punishable by up to 60 years in prison.

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.