Regardless of the reason you hire a lawyer, you want to answer his or her questions thoroughly. Whether you are hiring a divorce attorney, someone to take care of your will and trust, or a Utah criminal and immigration lawyer like me, every question has a purpose. You want your lawyer to do the best job possible because you’re paying good money for legal services.
Many of the questions your lawyer asks may seem simple or unnecessary. One of the most common complaints people have about their lawyer is that they don’t communicate enough about the status of the case. And yet clients are often reluctant to give out personal information like cell phone numbers or email addresses. From a lawyer’s perspective, it’s frustrating to call a house during business hours, leave a message with a child, and then never hear back from you. Lawyers tend to work long hours, but we have no idea when you’re going to be home so make sure your lawyer knows the best way and best time to get a hold of you.
There’s also the subject of embarrassing or damaging information. No matter how unflattering, it’s important for your lawyer to know everything about your case. Answer questions as honestly as you can. Your lawyer is sworn to keep your information confidential, but they can only prepare for stuff they know about.
Alternatively, you could have a great piece of information that would really help your case if your lawyer only knew about it. In my experience working as an attorney in Utah, clients frequently have no idea which facts will help or hurt their case. There have been times when I’ve talked to a client several times before a key piece of information comes out because the client mistakenly believes it will hurt the case. Since most lawyers charge by the hour, you are wasting money if you don’t give the information up front.
When the police question you, they’re going to carefully note what they have told you and what they haven’t. Any new facts you mention will be used as evidence that you have firsthand knowledge of the crime, but psychologically speaking, it’s nearly impossible to remember exactly what the police have told you. For the same reason that eyewitness testimony is suspect, people employ gap-filling when they encounter new information. They make reasonable inferences based on what they know or have been told and extrapolate further.
For example, let’s say the police tell a suspect during a murder investigation that neighbors heard shouting and some sort of scuffle and then a series of loud bangs. Many people would interpret those loud bangs in their mind as gunshots, but the police haven’t mentioned anything about a weapon, a gunshot, or bullets. As soon as the suspect mentions gunshots, the police will use that as evidence that the suspect had firsthand knowledge of the murder. In court, the police officer and prosecutor can make a convincing display for the jury. A talented prosecutor will build tension in the courtroom leading up to this moment. She will ask the police officer, “Is there anything about the defendant’s statement that confused you or interested you?” The officer will answer matter-of-factly, “I never said anything about a shooting or a gun. I said we were investigating a murder.”
It’s nearly impossible to keep straight what the police have told you, and this holds true even if the police are investigating you for a petty misdemeanor instead of murder. Intelligent people are possibly more susceptible to gap-filling because the more intelligent a person is, the more inferences they will draw. All of this can be avoided if you simply refuse to talk to the police without your lawyer present.
Okay, not everything is illegal, but a lot is. So many things are illegal that literally no one knows how many acts are illegal. The American Bar Association estimated that Congress alone has made about 10,000 acts illegal. Add in the ever expanding number of state laws, city laws, and government agency regulations, and the number of ways you can incriminate yourself is limitless. A person could spend all their life studying the various ways it’s possible to commit a crime, and still not be sure whether or not a particular act is a crime.
While many crimes, such as violent crimes, are intuitively illegal, many are not. There is no way that someone unfamiliar with the law can know the many ways there are to incriminate yourself. The police probably couldn’t care less if you keep your prescription drugs in little containers marked with the days of the week, but if you throw away the original prescription bottles, you’ve violated Utah Code §58-37-7. Even though that probably has nothing to do with the crime the police are actually investigating, you don’t want to give the police leverage to further their investigation. You could spend the night in jail while the police conduct their real investigation. Similarly, the prosecutor could add a seldom prosecuted crime to the indictment to pressure you into taking a bad plea deal.
When the police tell you anything you say “can and will be used against you in a court of law,” they mean it. You have no way of knowing what, exactly, you will be eventually charged with, and just about everything you tell a police officer could help a prosecutor in some fashion.
Many cases are simply the word of one person against another. The police are prevented from testifying about what a complaining witness told them by the Confrontation Clause of the Constitution and by the rules of evidence, but the police are allowed to testify about what a defendant says. If you tell the police anything that can help the prosecution, you’ve just given them more witnesses. Most laypeople are not very good at testifying in court. They get nervous, they’re unsure of themselves, and they wander off topic. Police officers, on the other hand, make very good witnesses. As part of their training, they take classes on how to be better witnesses, and they’ve testified in court many times before.
Take, for example, the crime of making criminal threats (covered by Utah Code §76-5-107, but illegal in nearly every state.) Let’s say that Mr. Jones is accused of threatening to punch Ms. Miller. As is often the case for this particular crime, the only corroborating evidence is the phone record, which only proves that a telephone call occurred. Fundamentally, the case boils down to Ms. Miller’s word against Mr. Jones’s. The judge or jury must believe Ms. Miller beyond a reasonable doubt, but she might have a hard time remembering the exact words that made up the criminal threat. The police officer, however, took copious notes. Because Mr. Jones talked to them, the police have pages of notes to remind themselves of what exactly he admitted, and they are able to tell the court in detail. So even though Mr. Jones denied making any threats, the police are able to testify that Mr. Jones admitted they had an argument over the phone. The confident, polished police officer will seem very credible to fact-finder, and Mr. Jones now has twice as many witnesses against him.
Also, police officers, like everyone else, are prone to error. Police officers sometimes mis-hear or mis-remember what they are told during interrogation. Through no malice on the part of the officer, they can testify that you said something you haven’t. If you never talk to the police in the first place, there will be no question about what you did and did not say during the interrogation.
Anytime you talk to the police, there is a chance you will admit guilt without any benefit in return. Police commonly give a vague promise to put in a good word with the prosecutor for people who cooperate. The police may indeed tell the prosecutor that you cooperated with them, but that just will not get you a deal any better than what a lawyer could get for you. Allow your lawyer to extract concrete, definitive deals from the prosecutor instead of vague promises.
Also, with how many laws are on the books these days, you may unintentionally admit guilt to crimes that the police had not been previously investigating. Even if you are innocent of the original charge, that gives the government leverage against you, which they can use to conduct further investigation. Information you divulge gives the police tools to request search warrants, wiretaps, or other investigative tools to further incriminate you. Instead of ending the investigation, it will be prolonged.
If you feel you must admit guilt—you need to get something off your conscience—you’re better off telling a member of the clergy or your therapist. Confession may indeed be good for you, but that’s a matter between you and your conscience or your God. Talking to the police will do little to assuage your conscience.
Some people feel that there is no harm to admitting guilt if it only tells police what they suspect or know already, That simply isn’t true. For any number of reasons, witnesses and police officers are frequently unavailable to testify. If a key witness is unavailable, your lawyer may be able to negotiate a better deal, or perhaps the government will be forced to drop the case altogether. However, if you have already admitted guilt, it doesn’t really matter if key witnesses can’t testify. A confession is sufficient by itself to get a conviction.
There’s simply no rush to admit guilt. You can always take a plea offer from the government later, but you cannot take back your impetuous decision to tell the police everything. Most criminal proceedings end in a guilty plea anyway. If you allow your lawyer to do their job, you can extract some sort of promise from the government in exchange for your confession. Regardless of the reason you want to talk to the police, you’ll be better served if you wait until time has passed and you have had a chance to talk to a lawyer.
In pastposts, I’ve tried to drive home how important it is that you never talk to the police without a lawyer present. Today, I’m going to launch a series of posts outlining specific reasons that talking to the police gets people into trouble. (Incidentally, it’s unlikely that the police will ever refer to their questions as “interrogation.” Police departments throughout the country, including the Salt Lake City Police Department, have figured out that calling it interrogation has a bad connotation. Police officers are likely to call it an “interview,” “questioning,” a “chat,” or any other word to give you the impression that you are just having a friendly conversation.)
If the police ever interrogate you, the questioning usually goes on for hours. After all, they’re getting paid to question you and they’re in no rush to do their other, more boring work. The police interrogate people they already think are guilty of a crime, and you can’t talk your way out of their suspicions. During the hours and hours of questioning, it is inevitable that you will say something that sounds bad, especially if taken out of context. In court, the police officer will repeat this incriminating sounding statement without any context whatsoever.
The following scene from the movie My Cousin Vinny is a great example:
Bill Gambini (Ralph Macchio) thinks he is confessing to stealing a can of tuna fish, but the Sheriff (Bruce McGill) thinks he murdered a store clerk. As Bill begins to understand what the interrogation is really about, confused, he asks (twice), “I shot the clerk?” Well, later in the movie the Sheriff testifies in court, but when he recounts Bill’s “confession” it’s no longer a question, but rather a simple statement, “I shot the clerk.” In the movie, Bill’s character nearly gets convicted for murder over this. In real life, you won’t have a Hollywood screenwriter to save your bacon.
Police officers have interrogated thousands of people before and know more about interrogation than you. They will ask you lose-lose questions, and you will be left with the choice of either lying or saying something unflattering that will look terrible when taken out of context. Say, for example, your neighbor’s house got robbed and the police suspect that you are somehow involved. You and your neighbor have been having a dispute about her tree, which the police already know. During the interrogation they ask you if you are fighting with her. You are stuck at that point. If you lie, then you could be facing additional charges, such as Obstruction of Justice, and the prosecutor will really drive home the point that you were lying to the police. On the other hand, if you choose to be candid and admit you have been fighting with your neighbor, the police will follow that angle until you say something terribly inconvenient, such, “I don’t like her at all, in fact, but I would never rob her.” Guess which part of the sentence the jury will hear.
If you never talk to the police at all, your relatively tame spat with your neighbor about her tree isn’t going to concern a jury. But if you couple that with an admission that you don’t like your neighbor, then the prosecutor has something to work with. Furthermore, if you mis-remember any details and later contradict yourself, regardless of how innocuous, then the prosecutor has a lot to build a case on.
It’s also really easy to contradict yourself. During my lunch break today, I went to a local takeout restaurant and tried to order a cappuccino. The proprietor looked at me somewhat accusatorily and asked, “have you been here before?” Before thinking about it I blurted out, “No.” His answer implied that I had no idea what I was doing, and my natural, amiable disposition caused me to answer incorrectly. A few seconds later I changed my answer to the correct answer, “Well, I’ve been here once, a year ago.” In conversations, people subtly change their answers all the time. If you let the police lull you into believing you are having a casual “conversation” with them, you too will change your answers.
For me, it was a low stress situation of ordering lunch. Imagine how wrong things could go during a police interrogation. Whichever answer a prosecutor prefers, that’s what the jury will hear. Or it could be advantageous for the prosecutor to make sure the jury hears all your answers and portray you as someone who can’t keep their story straight. Without any context of the surrounding conversation to the police, the job of the prosecutor will be easy. A clever prosecutor is halfway to a conviction.
Don’t talk to the police and make the job of a prosecutor easy.
The Supreme Court once again narrowed the Miranda rule with a decision released on Tuesday. In Howes v. Fields, the Court ruled that prisoner Randall Fields did not have to be given Miranda warnings, even though he was in jail for disorderly conduct when the police started interrogating him about his involvement in a possible sex crime. The Court, strangely enough, concluded that this interrogation was voluntary, even though Mr. Fields did not consent to the interview, he was not told he could remain silent, and he was denied his evening medications.
The Court said that it was reasonable for Mr. Fields to believe he could end the interview because the police told him that he was free to go back to his cell, but, as Mr. Fields testified, he did not believe them. Since the interrogation was involuntary from the beginning, I tend to believe Mr. Fields as to whether or not he could have really ended the interrogation. Obviously, the Supreme Court disagrees with me.
This Court decision underlies how important it is to request a lawyer anytime a police officer questions you. If it takes a lawyer to figure out whether or not you are actually “in custody,” I have no idea how a layperson is going to know. Despite what police officers may tell you, their goal is to get a confession. They are not there to help you, and they will work hard to avoid giving you a Miranda warning.
I have previously mentioned that there are a few questions you need to answer if a Utah or Salt Lake City police officer questions you. You need to provide your name and possibly some identification. Otherwise, invoke your right to silence and request a Utah State licensed lawyer familiar with criminal laws before you answer anything.
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.
Natty Shafer Law 