We’ve seen the scene a hundred times. Cops are interviewing a suspect, and they tell him that if he cooperates and gives them the information they want they’ll get a good deal, but if they ask for an attorney the deal is off.
Any truth in this? Would they get the same deal, maybe a better one, working with an attorney?
You’d get a better deal working with an attorney and saying nothing, but that’s not a good story to watch. The problem is, they don’t get an attorney and start running at the mouth about all kinds of stuff which only hurts a possible suspect. You don’t ever want to speak to them if you may be a suspect in anything without your attorney involved.
Sorry, that should be “You don’t ever want to speak to them in any case.”
The only reason they want to talk to you without an attorney present is that they want you to say something an attorney wouldn’t let you say. Your attorney is th ere to protect your interests, and if he doesn’t think you should say something, you really shouldn’t say it. That’s what the attorney is there for.
First, cops don’t make the deals; the District Attorney does. So he can still offer or not offer a deal, despite whatever cops have said.
But cops do have some influence on the DA, and the DA will try to honor what they said. Partly because the cops usually know what kind of deals the DA will agree to, and the DA knows that if he welshes on a deal the cops offered, the word will get around and affect the chances of making deals in the future.
But this specific statement by cops is probably not true.
Attorneys can help facilitate conversation between the suspect and law enforcement (it’s called a “proffer”), but the attorney will ensure that there is a benefit for talking (at the least, you’d want immunity). So, yes, the attorney would be working for a better deal. Or, any deal at all; remember that cops can lie in an interrogation, so I would never accept an assurance of a deal unless it was in writing.
A useful reference: Popehat, law blog by, I believe, a former prosecutor and now defense lawyer Ken White and some of his associates.
One of his most commonly recurring themes is: Please Just Shut The Fuck Up.
Just search for “shut up” in the search box to find many more articles that mention this.
TL;DR: Never talk to any law enforcement without a lawyer! Never! Never! Never! Not a word! Just read the article linked just above and any number of others on the topic to see why.
Not with my department. Per written policy I am specifically forbidden from making any promises or offering any deals. If a subject starts yammering that they’ll talk if they can get a deal the only thing I can do is get an ADA in on the interview and they can make the deals.
But FYI 95% of my arrests don’t involve interviews or trying to get subjects to confess. I already know what they did via other avenues (my own eyes, witness/victim/informant statements, video, voluntary admissions, etc). Which is why 95% of my arrests don’t involve Miranda.
Actually, if you watch carefully, in most of the Hollywood shows - except the really stupid ones - the police do NOT, never EVER offer an explicit deal. They say this like “it will go easier for you if you confess” or “you will make things easier for yourself” or “we can help you if you help us” - but police have no authority to make any offer since they have no control of the judicial process. (What they really mean is things will go easier for them, because if they can present the DA with a confession, the conviction should be a slam-dunk.)
Also, watch that once in a while the Hollywood writers make that fun mistake where the police continue to interrogate after the guy asks for a lawyer, or try to talk him out of one. AFAIK, IANAL, once the arrestee specifically asks for a lawyer, all interrogation must stop until one is present. (There’s precedent over whether “do I need a lawyer?” is asking for a lawyer or not. Not sure what the consequence of telling someone he does not need a lawyer is, but I assume it’s not kosher.)
My WAG is that any deal the interrogating officer or DA can offer (even if it’s something like ‘we can make this a whole lot easier…’), even if they suggest that the deal will be off the table if you call in an attorney, the attorney can negotiate the same (or better) deal.
Remember if they need something from you, they’ll still need it later when the attorney is there.
The only reason I can quickly think of is that they’re bringing in another suspect that’s part of the same thing. If the other person sings, they don’t need you to do it also. In that case it, in theory at least, it would behoove you to talk first since the deal may actually be off the table, attorney or not, if the other person tells them what they want to know first.
Asking for lawyer dogs doesn’t count.
How would a judge react on learning that the police threatened to make things worse for a suspect who asked for a lawyer? It might be seen as interfering with the right to counsel.
In Homicide: A Year on the Killing Streets by David Simon, creator of The Wire, he 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 suspect’s gullibility. The squad had a saying “crime makes you stupid”.
But this isn’t quite the same as offering the subject a deal. It’s an interview technique to get the subject to lower his guard and believe the investigators are on their side. Nothing unethical about doing that in itself. It’s not the same as “confess and I’ll get you manslaughter instead of first degree homicide”. The only sharp point is once a subject asks for an attorney (assuming they are in custody.) You gotta stop questioning them and can’t try and talk them out of it. If they haven’t asked for a lawyer it is permissible to suggest getting one would not be a good idea. And officers are allowed to lie to subjects. But they can’t lie about having the authority to make a plea deal. At least not here we’re not.
That doesn’t make sense.
If you are a witness to a crime giving a statement, you aren’t going to bring in an attorney for that. That’s why I said if you believe you are a suspect, or if they are asking you questions that are treating you like a suspect. Obviously if you’ve been arrested and they are questioning you, then you are a suspect. Not every communication with the police means you are a suspect.
If a judge has a way of proving that you asked for a lawyer and weren’t provided one, they can likely also prove that you weren’t mirandized, in which case nothing you say can be held against you.
Also, whenever the cops on Live PD are talking to someone that they even think might be involved in a crime and the person is clearly anxious to get their side of the story out the police will stop them and say ‘hold on, before you say any more let me just read you you’re rights’. Granted, it’s framed in a way to make the person think it’s somehow protecting them, but obviously it’s so that if the person says something incriminating in their rambling, the cops can use it later on.
It’s like being placed under oath in court. The person that’s under oath doesn’t gain any protections from it, but everyone else does.
HUH??? HUH???
I thought Miranda was the most basic right of any citizen.
How can you ignore it?
Suppose you see (with your own eyes) a murder, and immediately arrest the guy with the smoking gun still in his hands.
Are you saying that you don’t have to Mirandize him and tell him he has the right to a lawyer,etc?
Why not?
As an example:
You’re the cop on the scene, and you think you have just arrested a murderer. But he still gets a fair trial. And it may turn out during the trial that the shooting was not a murder at all–it was 100% legitimate self defense.(say, due to other facts that you didn’t see, because they occurred before you arrived on the scene.But somebody else did see them, and has video proof.) So you actually arrested a totally innocent person.
The whole point of Miranda, is to give the suspect access to his rights.
It’s always the same script: Either the TV cop reads the guy his rights, or the TV lawyer asks whether the guy was Mirandized.
I’ve watched a lot of TV shows, and surely they can’t all be wrong? 
Seriously, what am I not understanding here? Ninety-five percent of your arrests with no Miranda?
What your not understanding is everything you see on TV is complete bullshit.
TV programs and movies show police officers spouting Miranda while they are still fighting with the suspect. It’s nonsense.
Miranda only has to be given when 2 things are true:
1)The subject is in custody/under arrest (not free to leave)
AND
2)The subject is interviewed regarding elements of the crime.
If both of those qualifiers aren’t present, Miranda is not needed. I arrest people all the time with no need to question them, therefore, no Miranda. If I saw or otherwise know what they did, why would I interview them?
On the flip side, if I am talking to someone who is not in custody and is free to leave, they can demand a lawyer all they want. But I can keep asking them things because they are free to walk.
This is not legal advice, I am not an attorney. But I am 12 years into my second law enforcement career having retired as a Sheriffs Deputy after 25 years. I’m fairly certain I know what I’m doing.
Now, I don’t speak for **Loach **but he might come in here and say he has to Mirandize everyone. But if I recall correctly that has something to do with his departments policy or some state court ruling. It doesn’t have anything to do with Miranda vs Arizona, and it’s not true for most police officers around the country. Most cops will tell you Hollywood is crap and they rarely give Miranda to anyone.
Hey, I helped fight ignorance today!
You can arrest someone but not ask them any questions. Some people, IRL, seem to be under the impression that if you’re not read your rights, you’re not under arrest or that the cop is doing something incorrect. If I’m a cop and arrest you for, say, warrants or something I saw you do (especially if it’s not an overly big deal) and I’m not intending to ask you any questions, no Miranda would be required. The Miranda Warning is only required if a cop is going to interview you (ie ask you questions) and they want the answers you provide to be admissible in court.
Check out Live PD, it’s on break until the new year (but Live PD Police Patrol runs damn near non-stop) to get a feel for what actual cops do, in an unedited format.
If you’re talking to someone that’s not in custody/detained and they haven’t been read their rights, can you do anything with what they say beyond using it to further an investigation?
I’m assuming not. I’ve seen cops get (not self) incriminating information from witnesses and end up not being able to use it because the person then refused to make a formal statement (but that’s another story).
And with that if you mirandized someone as a suspect, who you figured out while talking to them that they weren’t involved, just happened to be nearby, could what they said be used against the other person even if they didn’t sign a statement? Does that make sense?
For example. You get a call about a robbery. You get to the scene, see me, matching the description and arrest/Mirandize me. I tell you it wasn’t me, it was that guy over there and point him out. Several other people/video corroborate my story and I’m released. If I wasn’t arrested and mirandized, I’d likely need to fill out a witness statement, but I was, so can you use the info in court?
I have no idea where you got the idea that Miranda is the most basic right of any citizen, it didn’t even exist until the 1966 case and is pretty narrow in scope. One could debate what exactly is the ‘most basic right of any citizen’ (and should be in GD or IMHO to do so), but it would be pretty difficult to argue that ‘must be informed that they have the right to a lawyer before being questioned if the police/DA wish to use statements from that questioning in court’ (Miranda) is a more basic right than the right to have a lawyer in the first place (Sixth Amendment).
Yes, that’s exactly what he’s saying. He would only need to Mirandize the suspect if he was going to question the suspect and hoped to use the statements at trial. If the police aren’t going to question someone, they don’t need to issue a Miranda warning at all, and if they don’t issue a Miranda warning and do question someone, all that happens is that they can’t use the answers to questions as evidence against the defendant at trial. It doesn’t even mean that police can’t use answers to questions - if they don’t Mirandize Joe and ask ‘where did you put the gun’, Joe says ‘it’s in Jimmy’s Barn’, and the cops go and find the gun in Jimmy’s barn, the gun perfectly fine to use as evidence and they can pull fingerprints from it to connect it to Joe, they just can’t use Joe’s statement to show that he had the gun.