Which amounts to the same thing especially in a state like New Jersey where any hint of getting around Miranda will get the interview tossed.
It can’t be dismissed with an “of course” it is the point of the thread. The question is if the lawyer has the power to stop an interview. The answer is no. If the suspect wants to talk its up to him.
You might want to look at Hibbel. If there is a reasonable suspicion that the person has committed a crime he has to provide his name in order to avoid an obstruction charge.
OK, you’re the expert. The police can keep the interrogation going and the prisoner and/or his lawyer can just keep repeating “I choose not to answer, fifth amendment, etc.” - I assume they don’t have to stop just because the lawyer says to do so (yes?) other than the need to give the lawyer time to confer with his client.
But if they kept badgering the guy despite his lawyer’s protests, until finally he snaps and yells “OK, I did it!” How admissible would that be? What if the police were calling him names, insulting him, making “yo’ mama” comments? At what point does it stop being fair interrogation and become harassment? Is there such a thing? Can you trust what a person says when they are angry?
The case, IIRC was in California where during a break in trial A, the police tried to take a picture of the defendant in the corridor. The lawyer jumped in, said she was his lawyer, and insisted they stop. They ordered her to get out of the way and for the man to pose, and when she refused, they arrested her for obstruction, in full view of plenty of cell phone videos. The charges were dropped fairly quickly.
Presumably there are plenty of arguments back and forth. She was his lawyer for the case at trial, and they wanted his photo for an unrelated case. However, they were (mis)using their authority to order him to pose so they could take a photo, which is something that you can’t really do at a routine stop (which is what this would be). They should not be able to make him pose for a photo any more than take his fingerprints. They have the authority to do a Terry Stop, but claiming a stop for check for weapons inside a secured courthouse is pretty blatantly pushing the limits. One argument was that he did not explicitly insist on a lawyer for this second case, but does he need to if “his lawyer” is already standing in front of him arguing with the police? His silence is acquiescence at the role she is playing. The lawyer’s concern is that by making him aware they were considering charges for him for a different crime in the midst of his trial was a form of intimidation - if you manage to beat this rap, we’re still coming for you. The cops assert that it’s their right to take a photo, and by getting in the way the lawyer was obstructing. If it was not a formal arrest, just an “encounter in public”, I don’t see where they have any rights to anything they claimed. Similarly, by interfering with them asking the suspect questions, she was obstructing an investigation - but if the guy was not being arrested, what’s the issue? By arguing with the police she was “resisting arrest” even though she did not physically resist.
there are so many interesting things at play in this situation - I bet it could keep a discussion going for months, let alone a court case…
Okay, what really happens (or could really happen) – versus what’s supposed to happen – in this specific scenario:
– Police detains me for some reason.
– Police take me to the dread interrogation room to have a little chat with me.
– I, knowing my rights (or thinking I do), answer the required questions (name, etc.) and, not wishing to spend $$$ to hire a lawyer, then state on my own initiative: “With due respect, I do not wish to answer any further questions nor make any further statement”. (Note, I am not invoking the 5th, or at least not saying that I do.)
– What really is most likely to happen next? Are the police supposed to terminate the interview right then? Are they likely to actually do so? Are they likely, in the absence of a lawyer, to continue questioning me, possibly including coercive techniques?
– What documentation exists (and by whom) of the interview? Are all interviews recorded, or maybe even videotaped, these days? What happens if I later dispute something that was (or wasn’t) said during the interview? What happens if I claim they continued the interview and/or used coercive techniques, and the police deny that? Can they coerce me into signing a confession (true or false or otherwise) and somehow get away with that? What protects me from any of that kind of stuff, other than having a lawyer present?
(ETA: In response to md2000, above: The power of the lawyer to protect me from all of that being simply that (a) he is present as a witness who isn’t “on the side of the cops” and (b) as a professional and an officer of the court (is he that at this point?), he has credibility.)
Just wanted to thank you for posting that link. It fit well with the discussion at hand, and it was very informative. There was quite a bit there that I had never considered. Interesting video, thanks much.
(Also, I wish I could speak as quickly as that man does… he sure packs a lot of information into his time. :P)
How have you avoided it, or rather them? There have been 36 seasons of the various versions, excluding L&O: UK (which wouldn’t apply here), and probably at least 25 of those seasons are in syndication (I don’t know how to check that), so it’s a little like never having watched It’s a Wonderful Life.
I guess “never” was a tiny exaggeration. I recall watching an episode or two when it first came on, but didn’t keep watching. And, yes, I have never watched any episodes (of the original or spin-offs) in either first run or syndication. So “never” is probably more accurately “once or twice”. I have a DVR full of shows I watch when I have time, and L&O is not there, so I never watch it. Sports and news are the only things I watch live or while channel surfing.
You continue to ignore the actual OP which has to do with a usual trope where the suspect is answering questions and the lawyer busts in stops the interview.
You also seem to be under the impression that the lawyer is equal to the client when he is just his advisor. The client can chose to waive his rights or invoke them at anytime. That is the whole point. This is what has to happen in the real world for anything to be said to be admissible.
If a lawyer shows up (or calls or faxes)and says you have my client the interview has to stop to give him an opportunity to consult with the lawyer.
The lawyer can advise his client not to speak. If the client still wants to speak then it is admissible.
If the suspect states he doesn’t want to talk then the interview is over. With or without a lawyer.
What really happens is the interview is over. In my state every suspect interview beyond any initial on scene investigation must be video taped. Any interview in which Miranda applies. Even many where it doesn’t.
Hmm… it’s nationwide that if the local state law requires you to do so then you have to follow that law. It’s not nationwide that each state has passed their own law to require you to do so.
As a defense attorney, as much as I argue with the local police in court, they are scrupulous about following Miranda. I’ve heard tapes where they are being nice guy/bad guy, telling the suspect how it will “help them out” if they talk, but as soon as the suspect unambiguously says he wants to talk to a lawyer, the interview ends.
Sometimes, the suspect says he needs time to think. That is ambiguous and the cops can pounce. Sometimes the suspect says he needs to talk to “someone.” That is also ambiguous and they pounce. (“You need to talk to ME RIGHT NOW!”) But as soon as they say that they do not want to talk to the officer and/or they want to speak to a lawyer, then the interview is terminated.
Maybe cops around here are better than others, but for all of my arguments with them, I have never found them to beat a suspect or to otherwise not respect their unambiguous declarations. Ambiguous declarations?? Ehh, the suspect may spend 17 hours in interrogation, but they have been smacked down on that recently.
There are parts of the ruling that are specific to the statute. There are parts that can be interpreted more widely. Until there is another decision clarifying some aspects Hiibel can be used as precedent depending on circumstances.
Interviews are hard work. Especially with an uncooperative subject. No one wants to put in the work just to get it thrown out.
No, I agree with you. If (another L&O scenario) the lawyer says “don’t answer that!” and the perp answers anyway, it’s pretty hard for him or the lawyer to argue “I wasn’t allowed my right not to answer” or “I didn’t know I could refuse to answer” or “it was coerced”.
But if the lawyer comes in and says “this interview is over” can the police ignore him until the prisoner says it instead? I assume 9 times out of 10 the prisoner follows the lawyer’s lead and so it’s a waste of time to continue? I assume this is the scenario the OP refers to. The lawyer does not so much command the interview to end, as the police will recognize the futility of continuing if/when the prisoner follows the lawyer’s instructions?
(Plus I assume if he arrives and says “I need to confer with my client” he has the right to suspend the interview until he is done conferring?)
Really? If the prisoner simply clams up and/or asserts “I don’t want to talk to you” (No mention of lawyer) the interview ends also?
I seem to recall some L&O shows where they receive the phone call the lawyer is coming, the prisoner does not know (rich parents called lawyer or something) and they hurry to get the guy to say as much as they can before lawyer bursts in (…and… “this interview is over!”). So it is the case that as soon as the police are notified of his legal representation they must stop and wait for them to show up?
Thanks for the direct info from a practicing expert…
Fortunately for the rest of us, criminals are stupid, and it is much more common for them to think they can talk their way out of it than for them to play games like refusing to talk but not asking for a lawyer.
Plus, a statement or a confession is worth more in court if it is written and signed (or videotaped) than simply the cops saying “he confessed”.
Loach will correct me if I am wrong, but I read an account of a local cop who was very good at getting people to confess or incriminate themselves. What he did was, first, get them to sign a statement that they had been advised of their Miranda rights. He explained over and over that this was not a confession, did not incriminate them, but was just to show that everything was being handled aboveboard. He did this to,
[list=A][li]Get them used to signing things and agreeing to things, and[/li][li]Making it clear that they had been advised of their rights, so there wouldn’t be any trouble later in court.[/list]If the criminals in question had any brains at all, at that point they would have asked for a lawyer and said nothing at all. [/li]
The key is that you have the right to speak to an attorney before any questioning. Therefore, the cop I read would get them to sign the form, and then talk at them for half an hour or so. He did not ask them any questions. He would just talk at them. While he was doing this, he did not let them say anything. If they did try to say anything, he would shut them off and repeat that they didn’t have to make any statement. But he would talk about all kinds of things, relating to the crime and to the background of the criminal and in general. Occasionally he would deliberately make misstatements, or say something provocatively wrong, but not allow the suspect to interrupt him or correct the misstatement (“No, no - you don’t have to say anything! We can get to that later!”). Very often, the suspect (did I mention that they were not typically Mensa candidates?) would become so irritated by the wrong statements being made, and by the refusal by the detective to allow him to speak, that he would begin correcting the false statements and supplying information. The detective was careful to confirm that the statement was being given voluntarily (“You know, you don’t have to talk. You’ve changed your mind? Okay, go ahead - tell us where you really were during that time”) and let the suspect dig himself a nice deep hole.
It was very clever, and I don’t doubt that I would fall for it if he tried it on me.
The police are used to the Miranda restrictions, and good cops are good at working within those restrictions.
It depends on whether he is smart or not.
If he is smart, he gives his correct name, address, and birthdate, says “I am not making any statement at this time - am I free to go?” If the answer is Yes, he gets up and leaves. If the answer is anything else, he says nothing whatever until the cops decide to arrest him, in which case he will sit in a jail cell until arraignment. Or let him go.
TV has to compress the whole arc of a criminal investigation into 48 minutes. IRL there is lots more time, so a suspect is going to spend several hours just waiting around, either for the investigating detectives to get around to him, or just to make him bored and nervous enough to revert to what is generally his default level of not terribly bright and given to saying and doing things against his own self-interest.
Yes, it’s amazing how many people operate on what I can the “Judge Judy Justice” principle. “He wouldn’t pay me back the $300 he owed so I broke in and took his TV”. This is the mentality of a five-year-old, that a wrong done to you justifies a wrong in return. Some people just don’t grasp that the law does not operate that way, and each offence generates its own consequences regardless of whether (you think that) you were wronged at an earlier time. So they will happily spill their guts to try and justify their actions, instead of STFU.
I remember reading some prosecutor’s comment (I think it was about Chicago) that the defense lawyers group did not believe that so many criminals voluntarily confessed. They forced to city to videotape all confessions, only to discover the police were right and criminals often sang like canaries when arrested.
Quoted for truth. These interrogation techniques are developed through science related to human psychology.
You are in a police station in a small room. Your fight or flight response is working on overdrive. The police officer seems to be your friend, gets you a drink, lets you step outside and have a smoke, etc. Oh, you don’t have a smoke on you? Well, Officer Dave smokes and he’ll let you have one.
You start to relax. He’s not a bad guy; he’s pretty nice and doing his job. He’ll understand. You, me, or anyone in this thread would end up confessing if we answered questions. Even if we are innocent, the police think we are guilty; that’s why we are there. I don’t doubt that many people give false confessions because of these techniques.
That is why it is vitally important to simply state, upfront, that you want to speak to any attorney. The attorney can listen to your story and decide if it will help you to talk. The attorney will also make sure that you aren’t kept there for 17 hours while talking. The attorney can also recognize when the officer is trying to bullshit you.
It is very important to assert your Miranda rights in any custodial setting.
Even a fairly decent TV show like L&O usually tends to portray the cops in a rather ‘manipulative’ role when interrogating. Watch a reality show like The First 48. It amazes me that, literally nine times out of ten, instead of just keeping their mouth shut and asking for a lawyer the perps always try to talk their way out of it. And every time they just dig themselves in deeper & deeper and inevitably talk themselves right into a conviction. It’s sort of human nature, if you’re guilty but you want to look innocent you think that the last thing you should do is ask for a lawyer as that is like an admission of guilt. In fact, especially if you know you’re guilty, it is the first & only thing you should do*!*
If you’re under arrest, definitely. Whether or not you are actually guilty, the police clearly think you are by the time you have been arrested and you never know whether circumstantial evidence may point to your guilt even if you factually had nothing to do with the crime. If you’re not under arrest, it depends on the circumstances. I mean, I wouldn’t mind talking to the police about a traffic infraction or a loud noise from the neighbor’s house or something.