236. Special Request: How to handle the police until your lawyer arrives

18+ Takeaways from this 6 minute talk:

The first thing lawyers try to determine when they handle the police and meet their client for the first time is ‘How bad has my client screwed themselves over?’

1. The cop’s objective is to get you to incriminate yourself. Most people have been raised to respect, trust, and obey authority figures: your parents, the teacher, the police, the firemen, your church pastor…

Because of this, many people answer police questions oblivious to the consequences of their answers.

2. The police usually arrive when you’ve been through a shock. Apart from the standard ID or passport check or security checkpoint, you normally go through life without interacting with the police, and police would typically prefer to leave you alone: No police officer wants to intentionally make their job harder on themselves than necessary.

3. The police never tell you they have a working hunch, and that you are a suspect.

[EDITOR’S NOTE: Recall in lesson 206. Why you should never talk to the police and how the police get you to talk that from the police officer’s perspective nobody is innocent; everybody does something wrong with some degree of frequency. A police officer can follow anyone, and sooner or later that person will break some law that the police officer can legally stop and charge you for.

A good police officer’s job is to develop a good, strong case with probable cause and preferably with a confession and hand it off to the Common Wealth’s Attorney for prosecution as quickly and easily as possible. Good police will not want to put an innocent person in jail. Good police will also try to do his or her work thoroughly enough so that he or she doesn’t bring an innocent person into an interrogation room.

A good defense attorney’s job is to hope they can get to their client before the client has made any statements to the police.]

4. Sophisticated agents make ‘mistakes’. Just because you haven’t been read your Miranda warning does not mean you are not under arrest or being detained as a suspect.

[EDITOR’S NOTE: Recall in lesson 206. Why you should never talk to the police and how the police get you to talk that one major reason for refusing to give up your 5th amendment right is that modern criminal law is so complex – crossing several thousand sections of the US code – that even the federal government is unable to identify the current number of federal crimes on the books that a person can be charged with. Current guestimates put the total number of federal crimes at roughly 10,000.

This problem is further compounded by the ‘virtually infinite variety of facts and circumstances that can trigger a criminal investigation.’ This makes it impossible for anyone to know beforehand during police questioning whether or not you are, or may inadvertently become, a suspect in a criminal investigation, and whether or not your statements may be (mis)interpreted by a prosecutor, causing you to appear guilty.]

5. Trained interrogators can obtain a confession to any crime, from any suspect.

Unless you are completely innocent, you don’t want to be 100% cooperative. If you are even a little bit guilty*, you need a different plan.

*In the eyes of the law, you may be ‘innocent until proven guilty’, however in the eyes of an investigating officer, ‘everyone is a suspect’; thus ‘you’re guilty until proven innocent.’

[EDITOR’S NOTE: Recall in lesson 206. Why you should never talk to the police and how the police get you to talk that before asking the suspect if they understand their Miranda rights and are willing to talk to the police officer, the officer may chose to give the person a storyline of all the facts the officer knows thus far (which, if they are good police, will usually be pretty close to the truth) while reading the person’s body language for guilty/innocence clues and to confirm the elements of the officer’s story.

It isn’t until after the officer has done this that the officer will ask if the person would like to speak. Asking before if the person would like to speak to the officer before outlining the facts may cause the person to immediately shut up, and the officer will have lost his or her advantage in the situation.

Upon confirmation that the person is willing to speak, the officer may then go on to explain the difference between a truth and a lie, stressing that if the officer goes before the judge explaining that the person lies to the officer during questioning, the judge will not be happy about it. However, if the officer goes before the judge explaining that the person told the truth and took responsibility for his or her actions, the judge will take that into consideration.

Follow this script, and a good police officer is very likely to get the person being questioned to waive his or her 5th amendment rights and confess to the crime, or share whatever information they know.]

How to minimize evidence collected against you:

6. Because anything you say can be used against you, don’t speak** without your legal representative present. In the United states, special admission by a party opponent is “a type of statement that appears to be hearsay (an out of court statement) but is generally exempted (excluded) from the definition of hearsay because it was made by a party to the litigation adverse to the party introducing it into evidence.”

**Caveat: You can and should:

  • Give the police your name and date of birth
  • Ask “Am I under arrest?” and “When can I speak to my attorney?”
  • Give polite excuses that have nothing to do with the case. For example, say “I’m trying to date a criminal defense attorney, and she’ll never let me get to second base if I consent.”

Saying just one little thing that isn’t true can call into question the integrity of your entire story, or alibi.

[EDITOR’S NOTE: Recall in lesson 206. Why you should never talk to the police and how the police get you to talk that The Fifth Amendment of The United States Bill Of Rights provides that “No person shall… be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

Justice Robert Jackson‘s advice to “Should I talk to the police” was “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”]

Recalling point 3. The police will never tell you they have a working hunch, innocuous comments such as “She told me to meet her by the school,” “We used to date,” and “It’s my friend’s house” could be the ‘missing’ link in a chain of evidence pointing towards you, effectively doubling your jail/prison time if proven guilty.

Don’t ask “When do I get an attorney” because you will not be provided an attorney quickly if you are not paying for one; you will have to wait.

7. When police ask you for your permission to do something, politely say ‘No.’ The police cannot legally search you or your property unless they have a warrant or legal right to do so. However if you give them permission, then they no longer need a warrant.

8. Comply fully with ‘unconditional commands’ the police give you.

  • “I’m ordering you to…” IS an unconditional command.
  • A police office pointing a weapon at you IS an unconditional command.
  • “I cannot let you go home unless you…” IS NOT an unconditional command.

[EDITOR’S NOTE: Recall in lesson 206. Why you should never talk to the police and how the police get you to talk that police may say they will ‘put in a good word for you’ or that ‘cooperating with them on this investigation may reduce your sentence,’ but any and all negotiations are for your attorney to do with the other attorney and/or the judge, not you with the police officer. The police officer is not in a position to promise deals with you in terms of sentencing.

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