A new 10th Circuit court case came out this morning that highlights why everyone should just refuse to give the police officers consent for just about anything. The defendant, Michael Harmon, had multiple opportunities to tell the officer “no” and missed them all.
After speaking with the police officer outside his car, the defendant was issued a written warning for failing to maintain a lane and then he was told he was free to go. As Harmon was walking back to his car, the officer called out to him and asked him if he would mind answering a few more questions. As far as the law is concerned, at this point, everything Harmon did and said to the officer was voluntary. If he had just answered that he had to get going, the officer would have had to let him go. Obviously, Harmon did not do that. The officer then asked if he could search the car, and once again, Harmon missed an opportunity to just say, “no.”
Imagine for a moment that Harmon was innocent and had nothing to hide. There still would have been no benefit for talking with the officer. It could only delay him from wherever he was headed. Yet there he was, answering questions and letting the officer search his car for evidence.
Personally, I would rather be anywhere else other than watching passively as an officer rifles through my car. He would not find anything illegal, but it would be a complete waste of my time (and potentially embarrassing) as he snoops around my personal belongings. Everyone has the right to tell a police officer they need to leave, and everyone should do so. Nothing good will come from letting an officer look around.
With yesterday’s decision, Salinas v. Texas, the Supreme Court has unwittingly shown once again why you should never talk to the police. The defendant in that case, Genovevo Salinas, went into the police station with the understanding the police were trying to clear him as a suspect. As should be clear from the record, the police had no intention of clearing him. They wanted him to incriminate himself. Salinas continued answering their questions until the police asked if the shotgun in his home “would match the shells recovered at the scene of the murder.” At that point Salinas stopped talking.
At his trial, the prosecutor used Salinas’ silence as proof he was guilty. He asked the jury to infer that an innocent person would have protested their innocence. It should go without saying that for the privilege against self-incrimination to mean anything, silence cannot be proof of a person’s guilt. With yesterday’s decision, the Supreme Court said there was nothing improper about the prosecutor’s comments. According to the Court, Salinas needed to specifically state the magic words, “I’m going to exercise my right to remain silent.”
How a non-lawyer is supposed to know what magic words to utter is beyond me. There are just too many things a layperson cannot know and therefore should never attempt to talk to the police without a lawyer. This is equally true if you are innocent. Remember, the police already think you are guilty, or they would not be investigating you. No matter how eloquent you think you are, the police have more practice at interrogation.
Yesterday, a law school friend of mine sparked a facebook discussion about talking to the police. He linked to a Maine case where the defendant got herself into trouble by admitting to the officer that she had had a martini several hours previously. (It’s not necessary to read the case to understand this post, but you can reference the case here.)
The defendant was stopped at a routine DUI checkpoint, and the only evidence that she could be intoxicated was her statement and the officer’s estimation that she was speeding upon her approach to the checkpoint. Her speech was normal and she didn’t smell like alcohol, but the officer decided to put her through additional screenings to check for intoxication. It’s important to note, she said that she had engaged in a completely legal activity—drinking a single martini several hours before driving.
On the facebook discussion, the consensus among the non-lawyers was that it would be impossible not to talk to an officer in that situation. Telling the officer you aren’t going to answer him would raise his suspicions, or it would be socially awkward as you quietly ignore the questions. It’s unfortunate, but the courts haven’t left us many options for dealing with police. Lying to police can lead to new criminal charges, and telling the truth has its own problems. Answering questions gives officers information to further conduct their investigations, and once you start start answering questions, as far as courts are concerned, you are engaging in a “voluntary” conversation, which prolongs the traffic stop just a bit longer. The law has left us with this bizarre situation where we either quietly ignore officers’ questions or tell them point-blank that we are not going to answer. Counter-intuitively, officers cannot use our silence as evidence of anything.
Even though it happened in Maine, I have little doubt that a Utah court would also rule that an officer has probable cause to conduct a DUI screening based an admission that the driver had a drink several hours before. It’s uncomfortable and socially awkward, but when you encounter police officers, it’s best not to answer their questions.
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.
It’s one of the bigger frustrations for a criminal lawyer. No matter what the rest of the evidence says, most jurors cannot believe that innocent people confess to crimes they did not commit. The New York Times recently published a story on this subject. Oakland police suspected a 16-year old named Felix in a murder investigation. During interrogation, the police refused to let Felix talk to his mother, and questioned him until he finally cracked and started telling the police what he thought they wanted to hear. His confession was extremely poor—none of the details fit the crime scene—but he slowly incorporated subtle details the police gave him.
Felix was saved from having to explain his unfortunate confession to a jury because, as it turns out, he had an airtight alibi: on the day of the murder, Felix was locked in a juvenile detention facility. While Felix was spared, false confessions occur more often than the general public wants to admit. As The New York Times article goes on to say:
Psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill and mentally retarded, and suspects who are drunk or high. They are susceptible to suggestion, eager to please authority figures, disconnected from reality or unable to defer gratification. Children often think, as Felix did, that they will be jailed if they keep up their denials and will get to go home if they go along with interrogators. Mature adults of normal intelligence have also confessed falsely after being manipulated.
False confessions have figured in 24 percent of the approximately 289 convictions reversed by DNA evidence, according to the Innocence Project. Considering that DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions—and false confessions—surely exists.
The phenomenon of false confessions underscores a few things: 1) Police interrogation is serious business and it is very intimidating for the average citizen to endure. People who are susceptible to suggestions should never think about talking to the police alone. 2) The importance of getting a lawyer immediately cannot be overstated. Many people think they will get the police to see their point-of-view during an interrogation, but that isn’t a realistic expectation. The police interrogate suspects regularly who pretty much all say that they are innocent, but most suspects are novices at being interrogated. 3) Prospective jurors should be more skeptical of supposed confessions. The circumstances of a supposedly confession make a difference. But regardless of those circumstances, the police are going to show jurors the finished product: a tape recording or a written statement taken after many hours of continuous interrogation.
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.
Natty Shafer Law 