they’ll bring in a public defender unless you already have an attorney or want to take a stab at the yellow pages.
If you are an individual with resources “calling your dad” (spouse/partner/intelligent friend) is a good choice - they can find you and attorney. But if they are going to open the yellow pages and take a stab, you are probably as well off with the public defender.
(My call list is to my husband, who calls our former attorney who is now a judge, who tells us who to call - because we haven’t bothered to get a new attorney.)
You’ve got a lawyer saying people should hire my lawyers. Not an unbiased source of advice.
Like I said above; if you’re guilty, shut up and ask for a lawyer. If you’re a suspect, shut up and ask for a lawyer. If you’ve been arrested, shut up and ask for a lawyer.
But if you were a customer in a nightclub and some guy came in and started shooting people (luckily you weren’t hit) and the police have arrived and they’re asking the people who were in the nightclub what they saw…
…and your response is “I’m not answering any questions until I see a lawyer”…
…then you’ve just moved yourself from the witness category to the suspect category. You’ll get a lawyer. And you’ll be interrogated for several hours and held while the police investigate your life to see what connections you have to terrorist organizations. The police, who now have what they think is a good lead, are trying to identify the shooter by checking all the people you know. Meanwhile, fewer resources are being used to try to track down the actual shooter (some guy you never met).
How are the police supposed to know who the suspects are, if they can’t even ask any questions?
I’m not saying that “ask for a lawyer and shut up” is bad advice, mind you. I’m just saying that the “later investigation” that develops all the evidence begins with asking questions.
An interesting point that I’ve heard mentioned on FB (admittedly from a very anti-police FB friend) is that if you get pulled over and the cop says ‘do you know why I pulled you over?’, the answer is always ‘no, I don’t’. The reason being that the officer is phishing for information. They know why they pulled you over, they don’t need to ask you. So when you say “ummm I was speeding” or “I assume you saw me smoking weed” or “ya, you got me, the car is stolen” or "I don’t know, I’m guessing you saw me cross the center line?"you’re just adding on to the charges (and possible getting yourself arrested) when maybe the only reason you were pulled over is because you had a brake light out.
I remember years and years ago I was pulled over. The first thing I thought was 'there’s no way that cop saw me speeding, that was miles ago. So, he walks up and says 'do you know why I pulled you over?", but gut instinct was to admit to speeding (like 10 minutes ago) but I just shut my trap and said ‘no’. Turns out someone (or so he claimed) and stolen a lawnmower (in the dead of winter) in a vehicle matching my description. He asked if he could search the vehicle. It was a big panel van and I said 'well, it’s empty, you’re welcome to look through in the windows". He did, that was that and off I went. If I had admitted to the speeding, I probably would have gotten some kind of ticket.
OTOH, when I watch COPS, as soon as someone says ‘I want a lawyer’, they’re nearly instantly placed under arrested, Mirandized, and told that they’re under arrest specifically because they’re not cooperating, yes, they’ll get a lawyer, but ‘geez, you would have already been on your way by now (BS, I’m sure)’. So, it’s sort of a catch 22. You were just doing something minor, speeding, blowing a stop sign etc, you have no priors, your car isn’t going to get searched, you’re not drunk or high, you don’t have any weapons on you… Do you take your lumps and move on or do you play the “I want a lawyer” card and make life harder for everyone else and pretty much guarentee some kind of charge, even if it gets dropped, it’s going to drag on for months, might cost you money and will, for sure A)be on your record and B)be more serious than the moving violation you were pulled over for.
Having said all that, if you were a party to a crime, if you know your car is going to get searched, if you do have anything illegal on you, if the cop is playing mind games, than yes, I don’t think it’s a bad idea to shut everything down and request a lawyer. I also don’t have a problem with answering ‘no’ to the ‘do you know why I pulled you over’ question.
ETA, A long time ago there was some new story or book or something that explained a few tactics for getting out of a ticket (specifically DUI’s I think). My uncle was a beat cop at the the time. He got the book (or watched the report) and shot down every one of them as either not working or probably making things worse for you. For example, one of the things suggested was that you carry your license, registration and insurance paperwork in an envelope and keep it nearby, if you get pulled over, you roll your window down a little bit and when the cop asks for those items, you can hand them to him. The idea being that he doesn’t see you fumbling around like a drunken fool, you know you have them all and with the window not all the way rolled down there’s less of a chance of the officer smelling alcohol. My uncle, WRT that one said 'if I pulled someone over, asked for their license and registration and instead of rifling their their glove compartment and purse/wallet like a normal person, they had it all ready to go in an envelope, I’d already be more suspicions that something was going on that shouldn’t be going on.
The legal system is nothing about “how it is” but “how they can make it look”. Once the cops start interrogating you, get a freakin’ lawyer, not now but right now. Like the US, in Canada you have the right to remain silent and demand a lawyer prior to interrogation, but the key difference is the cops are under no obligation to tell you that.
It’s my understanding that they can ‘interrogate’ you whenever they want, however, you can’t remain silent and/or request a lawyer until you’ve been arrested. Keep in mind, even while not under arrest, you’re not always free to go, US police, as I understand it, do have the right to detain people.
Having said that, a change that could be made (and I have no idea how the logistics would work) would be define ‘interrogation’ and then make it illegal to interrogate someone without a lawyer present. So, a cop feels someone is suspect in a crime, instead of asking them a bunch of questions to see what they can get out of them, they have to get a lawyer present. Whether they have lawyers on duty 24 hours or it means bringing that person in, I don’t know. One of my thoughts is to give the ‘suspect’ the option to waive that right, but too many people will do that (even if they’re guilty) either thinking they can wiggle out of it or because the cop convinces them to.
Or course, a hard part of this is how to define ‘interrogation’. Do they have to call in lawyer every time they pull someone over? Probably not. But when they pull someone over and smell weed in the car, yes, they should get the lawyer down there before anything else happens.
To go back to an above scenario with a shooting, if they’re questioning a witness, do they need a lawyer, no. But what happens if later on that witness turns into a possible suspect. How is that handled?
Just a thought, lots of questions thought.
Anyways, Making A Murderer is a great documentary if you want to see police/detectives manipulate someone into confessing to a crime. Badgering them with the same question over and over and over, questioning them with out a lawyer or adult present, (IIRC) telling them they can’t go to the bathroom, literally feeding them the lines they wanted to hear. One of the suspects finally caved and ‘admitted’ he murderer someone because he thought if the did that he’d make it back to school before his last class of the day, based on ‘if you help us, we can help you’ statements, they even sat there and made him draw pictures of the murder scene, but the funny thing was, they had to describe how the room looked to get him to draw it since he didn’t know "now draw chains from her arms to the bed posts…no, not like that, like this). Regardless of if those people were guilty, the police force was corrupt, no ifs, ands or buts.
In Homicide: A Year on the Killing Streets David Simon, creator of The Wire, wrote about how Baltimore homicide detectives work. They offer the suspect the chance to “tell his side of the story” before asserting their right to a lawyer. They tell him stuff like:
“Once you up and call for that lawyer, son, we can’t do a damn thing for you. . . . The next authority figure to scan your case will be a tie-wearing, three-piece bloodsucker - a no-nonsense prosecutor from the Violent Crimes Unit . . . And God help you then, son . . . . Now’s the time to speak up . . . because once I walk out of this room any chance you have of telling your side of the story is gone and I gotta write it up the way it looks. . . . And it looks right now like first-degree murder.”
Suspects are cajoled to believe that the detectives care about them, that their crime is not really murder, that the detective believes their story and will go in to bat for them. Once the detective has a confession he leaves and with the other squad members openly laughs at the suspects gullibility. The squad had a saying “crime makes you stupid”.
Much is state dependant but there can also be many more restrictions. “Anything is fair game” is far from fact.
Have you never seen CSI? Enhance!
“Please step out of the car.” Yes you have to, Pennsylvania v Mimms.
Great book, great series. There have been a lot of changes over the last 25 years or so. I can’t speak definitively of all jurisdictions but I know if I even hint that things will go better for them without a lawyer the interview will get tossed without fail. Even if it is true that things would go better for them without a lawyer. I can’t make any promises of any kind. Even if those promises are 100% truthful. I’ve seen an interview get tossed when the suspect mentioned the word lawyer and no one said anything to him at all. This was after he waived his Miranda rights.
Are we allowed to lie? Yes. It is often not a good idea. The most powerful tool in an interview is the truth. Once you are caught in a lie then you’ve lost all credibility.
Even outside a police state, the police have a legitimate duty to enforce law and order, and asking questions of a suspect is the fastest and easiest way to go about this. If the suspect has an alibi and has witnesses that can vouch for them, then they have no reason to withhold this information. Failing to do so forces the police to expend more time and effort and resort to even more intrusive methods. It is completely legitimate for a policeman to ask questions, and the purpose of a lawyer is not to defeat the police but to prevent police from abusing their power and doing something illegitimate.
I suggest you read “An Ethics of Interrogation” by Michael Skerker. It lays out the argument for the moral requirement of police duty and the necessity of questioning suspects in a very detailed and comprehensive manner. (To include explanations for the moral imperatives against abuse and the necessity of a lawyer.) To summarize: The state has a moral duty to provide for the security of its citizens, and questioning suspects is an effective means of accomplishing this duty.
In France, there are three distinct status : witness, assisted witness (understand : suspect) and under examination (formally charged). When the police has indications that you might be involved in the crime they’re investigating, they must inform you of it, switch you to assisted witness status and it opens certain rights (including assistance of a lawyer, being informled of what you’re suspected of, what are the evidences against you, etc…). They can’t just pretend that they’re still randomly interrogating you to gather informations when they actually have reasons to suspect you. That’s a solution tho the problem you’re mentioning.
I would also like to add: Having examined police methods in REAL police states like Stalinist Russia, the cops that DON’T ask questions are the ones you really need to worry about.
I would echo the second part, but not the first. I mean, if you’re standing over the body with a smoking gun, sure, but if they don’t already know you shot someone there’s no reason to confirm it for them.
You’ll probably not be surprised to find that these questions have come up in court, like lots of times. This is actually just Miranda, more or less.
Interrogation means “custodial interrogation,” and it means questioning or behavior that is reasonably likely to produce incriminating statements by the person in custody.
And, as it turns out, the time when the requirement for Miranda warnings begins to attach is: right before custodial interrogation begins.
So it’s already true that they can’t interrogate you whenever they want, assuming they want to get evidence they’ll be able to use against you. And you can always remain silent and request a lawyer; what Miranda does is say that even if you don’t do that, they can’t use any evidence they get from you under custodial interrogation unless they warn you first that you could do that. So the rule is already something very close to what you’d want to see, generally speaking: they have to tell you that you have the right to a lawyer before they interrogate you. If you say you want a lawyer there, a lawyer has to be present. You can waive that, if you want, and many people do, often stupidly.
In related news, as to the OP:
[QUOTE=Jim B.]
This book is a treasure. As the title suggests, you can literally answer any legal question with it.
[/QUOTE]
If there is any legal advice anyone anywhere ever takes, it should be: do not believe that the above is ever going to be true about anything, including every word ever written by human hand. Even stuff that has mostly been hammered out to death already (which criminal procedure certainly has) is super complicated and trickier than it seems, and the things you think you know probably aren’t even true. Which is a big part of why your failsafe legal strategy should be to pretend it wouldn’t be possible for you to say anything even if you wanted to.
First, if asked to identify yourself, you MUST do that. That’s a given.
Second, if the officer wants to do a brief pat-down for weapons, submit to it and shut up about it. Making sure that you are unarmed and not posing a threat will lower the tension level drastically.
Third, if you are not involved in the action being investigated and are only a witness, answer their questions accurately. The fresher the knowledge is in your mind, the better off everyone is.
After that, it’s up to you. If you are actively involved - let’s say you are a CCW permit holder who has to shoot a bad guy - then the best advice comes from Massad Ayoob:
Correct me if I am wrong - if you say something without being asked, they can use it even if you have not been Mirandized. Is that correct?
IOW, they arrive on the scene to find me standing over the corpse with the gun in my hand. The cops therefore bellow “You are under arrest - put your hands on top of your head” and I shout “The SOB had it coming, and I would do it again!” They can use that against me, because they didn’t actually ask me any questions.
The quick answer is it depends. Spontaneous utterances are admissible. Whether it truly is a spontaneous utterance is going to be determined later by a judge.
In my extensive legal experience (I have seen several episodes both of Perry MasonandLaw and Order) I expect the police to Mirandize me and then get me to repeat my statement, and write it down, and sign it. So there wouldn’t be any doubt.