Natty Shafer Law

Utah lawyer for criminal and immigration cases

Category Archives: Criminal Law


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Anyone Can Need a Criminal Lawyer

I write my blog from the prospective of a regular person searching out a criminal lawyer, but a lot of my advice would be most helpful for someone to know before they get into trouble. Almost everyone will have some interaction with the criminal justice system sometime during their life. Whether it’s a routine traffic stop, being an innocent witness to a crime, or something far more serious, chances are that at some point you could benefit from a little criminal law advice.

Last week, this point was driven home when a warrant was issued for John Copacino, a law professor from my law school. One Vivianne Pommier alleges that Professor Copacino and she were in a traffic accident during January, but that he left the scene before authorities arrived.

While I don’t want to comment on the credibility of the charges, it should be noted that if a professor at Georgetown University Law Center can be accused of criminal misconduct, none of us are immune. Even exemplary citizens can be accused of wrong-doing, and in those times, it is best to get a lawyer. Hiring a lawyer in no way implies guilt, but instead acknowledges the complexities of the criminal justice system. Even as a criminal lawyer, I would want an independent evaluator advising me if I were ever arrested.


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Police Questions You Need to Answer

When you encounter a police officer, most of the questions he asks, you are not required to answer. This post is going to focus on the few questions that you need to answer. The rules vary a little from state to state, but the same general rules apply. In almost every state, including Utah, you need to provide police with your name and identification if you are involved in a traffic stop. You also need to provide proof of insurance. You can invoke your right to silence for all other questions, and if you haven’t been formally arrested police are not going to volunteer that you can remain silent.

Many states, including Utah, also have what are called “stop and identify” laws. If you are found loitering, or if an officer has reasonable suspicion that you are in the process of committing a crime, the officer may demand your name. If you are in one of the states with a stop and identify law, you are required to truthfully answer. Either refusing to answer or lying to the officer can lead to criminal punishment.

The Supreme Court has not recognized any other situations where the government can require citizens to answer police questions. After an officer’s initial questions establishing your identity, you should invoke your right to silence.


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Voluntary Police Questioning

Sometimes, police officers may want to question you before they arrest you. Such “voluntary” questioning can be problematic for a suspect because police do not need to give you a Miranda warning until arrest. However, the government will still use any incriminating statements made before arrest in court. The government does not have to provide an attorney for indigent individuals, and those that could afford an attorney might not realize they really should have one.

It’s a common misconception that anything said before a Miranda warning is inadmissible. For example, here in Utah, a friend of mine was with a group of people on a school playground late at night drinking alcohol. When someone spotted the police, everyone scattered. Some time later, an officer saw him on the street and asked him if he was among the people who had been drinking. My friend said that he was. When he represented himself in a Utah court, his admission was the key evidence against him. He tried to tell the judge that the officer never gave him a Miranda warning, but, of course, the judge didn’t care because he hadn’t been arrested when he said it. And my friend is the son of a (non-criminal) attorney.

It’s important that anyone detained by the police ask if they are free to leave. Police can only detain a suspect for a short time—not much more than the average traffic stop—before a judge will conclude that the suspect was in custody, and thus under arrest. When police officers say you are free to leave, you should take advantage of their offer. To circumvent Miranda, police will sometimes tell suspects that they are free to leave when they really aren’t. Judges are skeptical that questioning occurred under voluntary conditions, if, for example, the police arrest you immediately after you decide to leave. Courts examine whether the questioning constituted “custodial interrogation,” and the fact that someone was not formally arrested does not necessarily mean that police do not have to give Miranda warnings.

Suspects who haven’t been formally arrested need an attorney just as much as someone who has. As I previously mentioned, it is paramount that you speak to an attorney if you are in custody.


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Eyewitness Testimony and its Problems


The front of the TRAX train has lifted onto the curb

I took the above pictures last night at my regular TRAX train stop. At the station, I talked to a number of people who were on the train when the truck and the train collided. These eyewitnesses all said pretty much the same thing: the guy in the red truck ran a red light and got hit by the train; the truck spun around and smashed into the concrete; and the train driver slammed on the breaks.

That sounded like a convincing eyewitness description of what happened until I dug a bit deeper. Everyone I talked to, when I asked if they saw the accident as it happened or if they only felt it, said that they only felt the accident. One guy said he was reading when it happened and just felt the train slam on its brakes. And from personal experience, I can’t see the traffic lights when I’m sitting on the train. How did everyone come to the conclusion that the truck ran a red light?

There’s two possible explanations for this consensus of what happened, despite few having actually watched it. 1) Everyone was passing along information they got from one of the few people who actually witnessed it. 2) Everyone was doing a lot of “gap filling” in their knowledge of what happened. They took what they knew to be facts and made assumptions about what happened. These two explanation are not mutually exclusive and actually reinforce one another. The gaps in our knowledge are most easily filled through information from other people. But it’s entirely possible that no passengers saw the truck run the red light and everyone is relying on gap filling, and groupthink was convincing each person of the correctness of this narrative.

Most of the time, there’s nothing wrong with gap filling or using second-hand information; such mental processes help us function. Unfortunately, people are very poor about remembering where they actually acquired a piece of information. Once our brains come to accept something as fact, we completely forget that we didn’t actually see the train colliding with the car. Instead, we remember the event around the narratives we have each formed in our heads. Also, memory is affected by retelling, but we rarely tell a story in a neutral fashion. People add emotion and subtle details to the narrative to help it arrive at a conclusion.

This can be a big problem for lawyers who need to question witnesses weeks or even years after an event. Witnesses will tell the juries that they saw the truck run the red light, when they really didn’t, and they are not necessarily being untruthful when they do that. They really think they saw the accident the way they recount.

There isn’t an easy solution to the memory problem. The more we learn about memory, the more we learn how fallible it is. Eyewitness testimony has an appropriate place in our court system, but that testimony should be buttressed with scientific evidence.


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More on the GPS Case

Professor Orin Kerr made an interesting point over at The Volokh Conspiracy: the Supreme Court did not explicitly state that police officers need a warrant to attach a GPS device to a car. On Monday’s post I said that police will need a warrant, but the Court’s decision stops short of stating that. The Court said that the GPS device constituted a “search,” which generally requires a warrant, but there are so many exceptions to that rule that lawyers frequently get them mixed-up.

However, in practicality, the police really will need a warrant. Neither prosecutors nor police officers are going to risk losing otherwise good evidence just to test the state of the law. It may be a few years before the Court resolves this issue definitively.


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Talking to the Police

Theoretically, people have the right not to talk to police. I say “theoretically” because there are many situations where that is neither possible nor practical, but for this post, I’ll focus on the times where you might not want to talk to the police and you have the realistic choice not to do so.

The most frequent scenario where you will encounter a police officer is during a traffic stop. If you think there’s a chance that the officer will let you off with a warning, you’re best off just politely cooperating with him. But assuming you want to fight the ticket or if there’s a chance he will find evidence of other crimes in your car, you don’t have to answer his questions. The first question an officer asks you, usually, is, “Do you know why I pulled you over?” An officer who asks this wants you to admit to a traffic violation, and also he wants you to start a “voluntary” conversation with him. Hand the officer your license and registration and politely tell him that you are not going to answer any questions. After he has taken your license and registration, ask if you are free to go. This makes it clear that you are not consenting to stay.

Also, he is likely to ask you if you mind if he looks around in your car. You can say, “no.” Police officers are not being polite when they ask you for permission to do something; they need your consent.

If you live in a urban or suburban area, police may come to your home to investigate a noise complaint. That can be anything from domestic violence to a raucous party. Officers commonly ask if it’s “okay” if they look around your home. You have the right to say, “no.” Even if you have nothing illegal to hide, I wouldn’t let officers look around my house for the same reason I lock my doors: I don’t want strangers going through my home.

Another common situation where you are likely to encounter the police is if you happen to be nearby when a crime has been reported in a public place, such as a fight in a bar. It’s entirely likely that you’ll want to cooperate with the police, but you may have legitimate reasons not to. Obviously, if you are at all connected to the crime, don’t answer any questions. You shouldn’t run away, but calmly ask the officer if you are free to leave. If you aren’t under arrest, she has to let you go. Always ask if you are free to go if you don’t want to answer questions.


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Supreme Court Wary of Newfangled Technology

In a case decided last week, United States v. Jones, the Supreme Court said that police need a warrant to attach a GPS device to your car and track everywhere you go for an extended period of time. The decision is most surprising for its unanimity—all nine of the justices agreed that the police needed a warrant—although the Court split on the reason why.

Generally speaking over the last couple decades, the Court has given law enforcement leeway to do what they want. In this case, though, the Court ruled that the police trespassed onto Antoine Jones’ property—his car—in order to attach a GPS device; the trespass was a “search” and required a warrant. In the past, the Court has rejected the argument that a trespass is a search.

Justice Scalia wrote the Court’s opinion, but he joined six other justices in rejecting that notion in a 1987 case. Apparently, hopping multiple fences, standing on private property, and shining a flashlight into a barn is perfectly okay for law enforcement, but attaching a GPS device to a car parked in a public parking lot is an unacceptable trespass. Personally speaking, a tiny GPS device attached to my car is way less intrusive than having multiple officers run around on my fenced-off property. I don’t think there is a way to reconcile these two cases. The Court just doesn’t trust new technology.

The Court has shown its reservations with new technology before. For example in Kyllo v. United States the Court reversed a drug conviction because the government used a thermal imaging device, without a warrant, to look at Danny Lee Kyllo’s home. The thermal imaging device in use didn’t reveal much private information. It just showed inchoate, shapeless blobs of heat. But the Court didn’t trust the newfangled device and said the government needed a warrant to use it.

Last week’s decision is good news for those of us concerned about privacy. The Court hinted it may have ruled the same way even if the police never attached a GPS device to Mr. Jones car. Because of advancing technology, the day may soon come where everyone can be tracked endlessly, without a trespass ever occurring. The company Google is nearly there right now, and if private citizens can do it, the government won’t be far behind.


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Exercising Your Right to Silence Is Not Enough

In a post this week, I emphasized the importance of exercising your right to a lawyer, as soon as you are arrested. Some readers may have thought that it’s not necessary to immediately get a lawyer if you just stay quiet and exercise your right to silence.

Staying silent is a good start, but it’s insufficient. The Supreme Court has explicitly left open the possibility that suspects who have invoked their rights to silence can still change their minds. Suspects can show they’ve changed their minds by simply speaking. Once someone starts speaking, the floodgates have opened and the police can start or resume full-scale interrogation. Someone can explicitly tell police that they want to remain silent, but if they mention something related to their case—even if it’s only tangentially related—then they’ve legally shown their willingness to talk.

Also, police are allowed to re-approach someone who has already invoked their right to silence. If a reasonable time has passed, police officers are allowed to start talking to a suspect in the hope that they will have changed their mind. If they suspect starts talking, then as a far as the Supreme Court is concerned, they’ve obviously changed their mind. Some states have rules or laws prohibiting police officers from using either of these tactics, but Utah isn’t among them. Police departments in Utah are allowed to re-approach suspects who have invoked their right to silence, and they are allowed to start questioning suspects who change their mind, without confirming that they actually want to to relinquish their right to remain silent.

Invoking your right to an attorney is different, though. Once someone says they want a lawyer, all police questioning must stop. They aren’t allowed to re-approach the suspect, ever, without their attorney present. Suspects can’t casually change their minds either; suspects have to explicitly sign a waiver stating that they no longer want a lawyer. Getting a lawyer sooner, rather than later, is your best chance of minimizing any potential legal problems you may encounter.


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The CSI Effect

The CSI effect is a positive trend in criminal law. In a nutshell, lawyers now see an unwillingness on the part of jurors to convict with only circumstantial or eyewitness testimony, and jurors demand more forensic evidence before they are willing to convict defendants.

Before the advent of shows like CSI, jurors put too much faith in eyewitness testimony. Slowly, the message is getting out that people aren’t all that reliable in what they think they remember. And there isn’t a correlation between how confident witnesses seem or claim they are in their memories, and how accurate their memories actually are. A good lawyer can help a witness exude confidence, while other witnesses are just naturally confident.

Problems with eyewitness memory are compounded when it comes to identifying people. Anyone can identify what their close friends look like, but identifying someone you’ve only seen once—for the few moments it takes to commit a crime—is hard. It gets harder if the two people are from different ethnicities. A confident witness can convince a jury that they remember a criminal’s face just as well as they remember their own mother’s face, but in all likelihood, they’re wrong.

Unfortunately, the Supreme Court doesn’t see this as a problem (or at least the Court doesn’t see it as a violation of the Constitution.) In a case decided earlier this month, Perry v. New Hampshire, the Court took a step in the wrong direction as far as letting bad eyewitness testimony into trials. The Court ruled that judges do not need to exclude eyewitness identifications, even if the identification procedure was unnecessarily suggestive, as long as the police did not arrange the identification procedure. There are many ways eyewitness identifications can be “unnecessarily suggestive.” For example, the police can have the identification take place on the street and show the witness someone they arrested, and have handcuffed and laying on the ground. Witnesses want to be helpful, so they’re likely to confirm what the police already suspect, even if the witnesses aren’t entirely sure. If the police arrange for the eyewitness to make the suggestive identification, courts are supposed to exclude that evidence. But the Supreme Court said it’s okay to use unnecessarily suggestive identifications if the eyewitness just happens to spot the suspect in police custody.

During arguments before the Court, the Innocence Project showed that in 2/3 of the cases where they had used DNA to exonerate a wrongful conviction, an eyewitness had incorrectly made an identification during trial. Most of the convictions that the Innocence Project managed to exonerate occurred prior to the widespread use of DNA during trials. Therefore, the trials also predate the CSI effect. One hopes that the CSI effect would have prevented some of the wrongful convictions, but we can’t be sure.

Although the Court doesn’t think it is a violation of the Constitution to let bad evidence into trials, individual judges can let juries know that there are problems with eyewitness identifications, but most won’t do so. What is worse, many judges won’t let defendants use experts to tell to juries the problems with eyewitness identification. Some judges seem to think such testimony confuses juries.

Only one Justice, Justice Sotomayor, dissented from the Court’s opinion, so this is not a decision that is going to be reversed any time soon. In the meantime, I’ll hope that pop culture continues to teach jurors that when it comes to evidence, hard science is best.


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What to Do if You Have Been Arrested

If you are arrested, what you say can be critical. That’s why it’s very important that you request a lawyer immediately. In Utah, police only have to give you the customary Miranda Warning that you have the right to an attorney. No police department in Utah will advise you that it is a good idea that you get a lawyer; lawyers makes their job harder. (But we make it much better for you!)

Many people are reluctant to ask for a lawyer because they think that by asking for a lawyer, the police will think they are guilty. This next point is absolutely critical: if you have been arrested, the police already think you are guilty.

That point is so important that it bears restating. If the police have arrested you, they already think you are guilty, of at least something. You are not going to talk your way out of their suspicions. Do not try to convince the police of your innocence. Anything you say will likely make matters worse. You may unwittingly confirm your knowledge of the crime or you may admit to a related crime. Let a trained attorney do the talking for you. Whether you are in Utah or somewhere else in the United States, an attorney like me can steer you clear of the common traps that police lay for suspects.

Lying to police makes matters much worse. People forget that Martha Stewart went to jail for obstruction of justice, conspiracy, and making false statements. Those convictions stemmed from lying to federal officials and have little to do with the reasons she was initially investigated.

Next, do not trade momentary comfort for long term pain. Police in Salt Lake City and other jurisdictions are allowed to lie to you. They can tell you that if you just admit it, everything will be easier for you and you can go home. This is a whopper of a lie. The police may even let you go home immediately, but it won’t be easier for you. The criminal charges will still come. If you request a lawyer, it may take more of your time in the short term, but you will be better off in the long term.

Finally, be sure to make your request for a lawyer absolutely clear. If the police ask if you want a lawyer, say, “yes.” Do not qualify that statement in any way. You want a lawyer present. If the police start questioning you, tell them, “I want a lawyer present.” Do not make this a question. (E.g. “Should I get a lawyer?” or “Do you think I need a lawyer?”) Salt Lake County police departments know that they can continue to question you if you’ve made ambiguous requests for a lawyer. Only an unequivocal request for a lawyer will do.