I'm an innocent man... (for (ex-) lawyers)

Factual Questions
21

Singledad,

“The Practice” is probably one of the better shows as far as good courtroom procedure goes… but even it is not a great source of guidance on these issues.

It is true that the ethics rules prohibit knowingly suborning perjury. Because of this, you should not put your client on the stand if you know he will lie.

However, in most real-world situations, there are plenty of other good reasons not to put your client on the stand. Typically, he’ll have a record, which the Commonwealth can use to impeach him. Typically, anything he has to say will be contradicted by a cop. In general, judges and juries tend to believe the police, unless they’re given a reason not to. If not a cop, he’ll be in a credibility contest with a witness who doesn’t have as much reason to lie as he does. In short, knowing your client did it is rarely the only thing stopping you from calling him as a witness.

All told, it is better to know everything that happened, as it happened. It’s easier to pick apart the Commonwealth’s case if you know what really happened. But if you have a client that insists he simply wasn’t there, and a parade of witnesses saying he was, you don’t have a hell of a lot to work with.

Trust me – the odds favor telling your attorney everything, no matter what Bobby Donnell says.

  • Rick
22

Absolutely not.

As Arnold suggested, the attorney-client privilege prevents the attorney from revealing information he learns from the client, even if it is incriminating. The attorney who learns where the bodies are buried cannot tell the police, or the court.

The sole exception is for “crime-fraud”. If an attorney learns of a future crime being planned, he must take steps to avert it, and may warn the authorities. Incidentally, the privilege is not available to a lawyer who is part of a criminal conspiracy, since that is, by definition, the planning of a future crime. So you cannot, for example, talk a lawyer into helping you run your drug business, expecting to be shielded by the privilege if you’re caught.

  • Rick
23

AvenueBDude:

Please check out this website: http://www.wm3.org/
or view the films “Paradise Lost” or “Paradise Lost II” bith of which are available on video and are currently being shown on HBO.

If Jesse Misskelley had simply said “I want a lawyer”, the police would not have gotten a falsified confession from him and three innocent people would not be on death row. Refusing to speak to the police until you have a lawyer present is your right. This does not mean that you are guilty.

24

Quick correction- I meant to say “three people would not be imprisoned and one of them would not be on death row”.

25

So I guess we can rest assured that if 'Dude is ever arrested, he’ll sign a full confession? What’s that you say, 'Dude, you’re not guilty? Too bad, 'Dude, you should have shut up after asking for a lawyer! Oh darn, you didn’t know your rights? Too bad, you’re the one who didn’t want anyone discussing those rights in case some got away with a crime!

“The analyst went barking up the wrong tree, of course. I never should have mentioned unicorns to a Freudian.” – Dottie (“Jumpers” by Tom Stoppard)

26

A keeper is only a poacher turned outside in, and a poacher a keeper turned inside out. – Charles Kingsley

Many people here have expressed their support for the police and I suppose the police are a necessary evil but in my personal experience what I have seen is that they are people who like to abuse their power just because they can. People who are not like that tend to have other professions.
As far as human quality goes I do not see much difference with the criminals they chase. They just work on opposite sides of the line. I would rather not have to deal with any of the two.
Another quote:
“A liberal is a conservative who has been arrested”

27

The non-fiction book “Homicide” upon which the TV series was based is an excellent primer on police interrogation, at times funny and brilliant.

There was one particular false conviction for murder in Canada. A young girl was murdered in a semi-rural area and two old detectives focused on a mildly eccentric young man who lived nearby with his parents. He had no real job, was a musician, and generally stood out a little as being different. The detectives spent many hours with this man, driving him around, always pretending he was “helping” them. Then his conviction was obtained using somewhat out of context remarks they got out of him, such as getting him to agree that “sometimes young girls can be bad and should be punished”. Combine the remarks with the heinousness of the crime, and the conviction was obtained in a jury trial. He was eventually cleared and freed. Of interest was that the police focused on this man entirely because he fit a profile provided by the FBI profiling experts to the Canadian police.

On the other hand, a blanket “don’t talk to the police” policy is not exactly good citizenship. I would say the rule of thumb is if there is even the remotest possibility you are a suspect do not speak or cooperate whatsoever and this would include any consent to any kind of search. The cops will bluff, lie, do anything. In one case in Canada undercover police befriended a young male suspect and strategically provided him with porno and tissues, hoping he would masturbate a DNA sample.

A couple of years ago a woman who worked at the same company as me was strangled in her home. Employees were questioned. Several of us were out of the country at the time including one man who knew her well. He met with the police several times and told them a lot about her personal life. His alibi was rock solid, he was never a suspect, and he was of great help to the investigators, so there are definitely times when good citizens could and should cooperate and help the police. But be very careful and, at the slightest whiff that you may be suspected, clam up totally and get away from them right away.

You’ll reach this same conclusion if you read “Homicide”.

28

I hope this isn’t veering too far into the realm of paranoia, but even if your attorney can’t rat on you personally, should you be wary of telling him everything for fear that his phone might be tapped or his office bugged? In Casino, I vaguely remember reading that Tony Spilotro had been succcessfully indicted as a result of his mistaken belief that the police couldn’t bug his lawyer’s office. Nowadays, with the remote listening capabilities the police and feds have at their disposal, I would wonder about this even more if (knock on wood) I ever had need to talk to a lawyer.

Just as an aside, I wonder if Ken Starr and his prosecutors were ethical in threatening Monica Lewinsky with charges in an effort to prevent her from calling a lawyer (again relying on only a vague memory here). Legally, can the police argue or threaten in an effort to dissuate a suspect from seeking counsel?

DHR

29

Until they ‘Mirandize’ you–advise you of your rights (to remain silent, right to an attorney, anything you say can and will be used against you, etc.,) anything you say is not admissable in a court-unless, and only unless, they can show they obtained evidence you gave them from another source.

Of course, if you knew you were guilty of some crime, you would not volunteer any information that could be used against you. On the other hand, if you were guilty, and thought they didn’t really know it, you might want to try to outsmart them by being ‘cooperative’, rather than asking for counsel immediately, which would make them suspicious and prone to follow up.

It is my experience that cops are not so much especially bright as they are especially intuitive. I was quite the hellraiser some 25 years ago and was constantly interacting with authorities. Even now, though, as straight and conservative looking as I am, whenever I have occasion to speak with a cop, they know sumpin’ ain’t quite right. They seem to have a sixth sense/an intuition about people.

::

30

Miranda only applies to custodial interviews, i.e. when you have been arrested. If you’re free to go, not in the station, etc. you don’t have to be advised of your rights, and your words can definitely be used against you.

Also Miranda does not exclude a purely volunteered admission, a statement made not in response to questioning but completely without prompting, under any circumstances.

I am not a lawyer. If your freedom is truly in jeopardy, do not rely on my advice or the advice of any person from the net, whether they represent themselves as a lawyer or not.

No matter where you go, there you are.

31

Not accurate. I’ll let Bricker fill in the details, since this is more his area than mine.

32

Heh - no need - SingleDad pretty much hit the nail on the head. Miranda rights are only required for a custodial interrogation. In the situation described in the OP, for example, as long as the suspect was free to go at any time, his statements would be admissible against him at trial, even though the cops did not read him his rights.

In another thread, somone suggested the need for a Snopes-like web site, devoted solely to popular misconceptions about the law: a cop has to say he’s a cop if you ask him direct, the cops always have to read you your rights before that can use anything you say, even if it’s illegal to drive barefoot.

I’m not sure a whole web-site is sustainable, but maybe Snopes should have a section for this kind of misinformation, since it seem to be so prevelant…

  • Rick
33

A communication is privileged if the client reasonably believes he’s making it only to the lawyer. The presence of a third party waives the privilege, unless it’s a prospective co-defendent.

I’ve never seen “Casino”, but no evidence obtained from the wiretap of an attorny’s office could be used against the client - unless the crime-fraud exception applied. If the discussion with the attorney were to plan and execute future crimes, rather than disclosing past misconduct, then such communication is not privileged. Other than that, however, as long as I don’t know the office is bugged, anything I say to my lawyer about the mopery I committed last week cannot be used against me in any way.

Well… probably not. It’s hard to know exactly what went on, but the general proposition is that punishing a defendant for exercising any of his rights amounts to prosecutorial vindictiveness. However, as I noted in another thread, a person may not vicariously assert another’s rights. Whatever complaint Monica might raise in her own defense can’t be used by those who she ultimately testified against.

  • Rick
34

‘If I have nothing to hide, I would think a police officer
would become suspicious if I didn’t allow a search.’

Nope. They can’t assume you are guilty just because you refused a search. It’s a common misconception to get people to allow a search.

Bricker, I didn’t see you write about ‘voluntary detention.’ The concept that you don’t have to stay around the cops if you don’t want to. In other words, I simply ask the coppers if Im under arrest & if they say ‘no’ then I don’t have to stay around anymore [waiting for them to find something to arrest for…]

35

I agree with Bricker’s comments about telling your lawyer everything. One of the functions of counsel is to be as objective as possible, and that means putting everything in context. As well, the lawyer knows the law, and how evidence relates to a particular charge.

It may well be that you, caught up in a process that you don’t understand, think that something is particularly damning, or you may have done something that you are ashamed of. But, your viewpoint is subjective and you are not trained in the legal implications. It may well be that your concerns are unfounded. Your lawyer is in a better position to know whether or not something is in fact harmful to your position.

As well, saying that you want to talk to a lawyer does not automatically mean that you are going to “beat the rap,” or as AveBDude seems to suggest, the lawyer will obstruct justice. You are saying that you want independent legal advice, to assess your position. If no charges have been laid, your lawyer can advise you on how far to go with the police. You do have the right to keep silent, which anyone can do. But, if you think you want to talk to the police, having legal advice on how to approach the issue, and how much you want to say, is crucial.

If charges have been laid, it may be that your lawyer will advise you to fight the charge, but it could also be that the most objective advice your lawyer can give you is that they have you on the charge, and maybe you should talk sentence. The purpose of the lawyer is to make sure you are fully informed of your rights and can assess exactly what situation you are facing. That is a much better way to go than to have a individual who is ignorant of his rights and the situation as a whole trying to make a decision. And, even if your lawyer advises that the proscution can likely make the charges stick, if you say you want to go to trial, your lawyer will do it for you. That’s your right, after all.

And, just to clarify, while Bricker is approaching this from the public defender side, I’m approaching it from the Crown side. I’m not a trial prosecutor as such, but I do some Crown work from time to time. I am much more comfortable when the accused is represented by counsel. The last thing I would want on my conscience at the end of my career would be the conviction of an innocent person. The adversary system is to prevent that result.

36

Responding to another question, the issue of the lawyer’s resposibility with potentially incriminating evidence is one of the thorniest ones that comes up in legal ethics.

The general rule is that anything your client tells you is privileged or confidential (there is a technical difference which we don’t need to discuss) and cannot be disclosed without the client’s permission.

However, the situation may be different with real evidence (i.e. - physical evidence) that the client gives you - the proverbial smoking gun. In addition to the criminal-fraud exception Bricker mentioned, privilege does not authorise a lawyer to break the law by his own conduct, for example by possessing a prohibited thing. If the client gives the lawyer something that is prohibited to possess, like drugs or a prohibited weapon, then the lawyer would be committing a crime if he/she kept it. Nor could the lawyer dispose of the evidence, since that would be obstructing justice. The lawyer’s duty would be to turn it over to the police, in a way that respects confidentiality, for example by the intermediary of another lawyer.

[Note: I’m posting from Canada. I appreciate that the canons of ethics may vary somewhat from jurisidiction to jurisdiction. As well, I don’t know if the example of a prohibited weapon makes any sense in the U.S. context.]

and the stars o’erhead were dancing heel to toe

37

There is a case going on right now in Toronto that raises this very issue, arising out of the Bernardo case. Bernardo, charged with sex-kidnappings and murder, told his lawyer about some incriminating video tapes hidden in his house. After the police searched the house, the lawyer went there and retrieved the tapes, which the police had missed. The tapes showed Bernardo and his wife, Homolka, torturing some of Bernardo’s victims.

The lawyer kept the tapes for over a year, but eventually turned them over to the police. He’s now facing charges of obstruction of justice.

Here’s a link: Globe&Mail, then type in “Murray” on the search function at the bottom of the page. (I won’t post the link to the Murray article itself, because I know from experience that it is too long and will screw up the board.)

38

Sorry - type in “Bernardo” - “Murray” brings up too many links. “Bernardo” will also bring up the account of the Court of Appeal dismissing Bernardo’s appeal from conviction.

39

Last night’s episode of The Practice showed exactly what sort of thinking can go on in an attempt to get around the strictures of Miranda. Briefly: after being Mirandized, a 15-year-old girl who had stabbed herself to terminate a third-trimester pregnancy was then ‘interrogated’ by the D.A., a young female, who proceded to induce the suspect to ‘confess’ by lying to her about a similar experience the DA supposedly had had as a child. The DA convinced the girl that it was better to unburden the soul, and that the DA would use the information to see that the girl was ‘released’.

Now, please, no commentary as to the truth or realism of the show or the result, but it does point out some common thinking, to wit: if you tell a suspect that they can stay silent, they will, making it almost impossible to convict them. Thus, trickery becomes necessary to put the criminals behind bars.

Now, this thinking has two flaws: first, it assumes that the result is more important than the process, a conclusion our Constitution rejected some time ago. Second, it assumes that the state cannot manage to obtain convictions without confessions, which I believe the studies post-Miranda show is not a correct conclusion.

Keeping this in mind, my suggestion is: ask the police why they wish to talk to you or search something you own. If they are gathering information about something that you didn’t do (looking for an eyewitness, etc.), then talk to them; after all, they aren’t the enemy. But, if you have any doubt that they might consider you a suspect in a criminal act, make certain you protect yourself with the help of an expert, namely, a criminal defense attorney who can advise you when to keep quiet and when to talk.

40

id ask for some coffie