What can the police lie about while conducting an interrogation? (February 3, 2009)
This was a good article (as always) from Gfactor.
My question is:
The police start interrogating me. I ask for and am granted a lawyer. The police then continue interrogating me with my lawyer present.
Does the police still have the same latitude in conduct with my lawyer present? Can they lie to me and my lawyer about having found evidence, having a witness to the crime, etc.?
Suppose the answer to the above question is yes, they can still lie to me with my lawyer present. My lawyer tells me “confess and plea bargain for a reduced sentence.” I do what my lawyer tells me to do. Is there anything I can do afterwards to negate my plea bargain agreement, if/when I found out that the police had been lying to me?
Except your lawyer is hopefully not incompetant and isn’t going to believe the cops have evidence against you without actually seeing the evidence against you.
Incompetant lawyer:
“We have a witness that saw your client at the crime scene!”
“Whoa. Damn, Arnold, you should probably confess right now, you’re screwed.”
Competant lawyer:
“We have a witness that saw your client at the crime scene!”
“Where is this witness? Who are they? Where’s the transcript of the witness interview? Etc.”
Yes, or “That’s interesting. I guess I’ll find out all about it in discovery. See you guys.”
In reality, the whole television “big sit down” with the defense attorney and defendant on one side of the table and the cops and/or DA on the other almost never happens. When the defendant asks for a lawyer, the cops break off the interview. The lawyer goes and talks to the defendant, then goes and talks to the DA, then relays the offer to the defendant, and so on. It rarely happens this way on TV because the big confrontation is more dramatic.
Right. As I pointed out in the article, the cops in most jurisdictions don’t have the authority to make a binding promise of immunity or a plea agreement. There are few reasons for a lawyer to discuss the case with the cops or permit his client to be questioned. That’s why they call it lawyering out. You ask for a lawyer and the interrogation is over. The lawyer will talk to the prosecutor about the evidence and any plea deals.
Probably so. *Frazier *and *Miranda *both deal with coerced confessions. The presence of an attorney is supposed to make the environment less coercive. Similarly, a competent attorney should be able to debunk the police’s claims or instruct the client not to talk to the police or both. Therefore, it’s unlikely a court would find that the presence of counsel made the environment *more *coercive.
Under some circumstances you could argue ineffective assistance of counsel. http://www.hg.org/article.asp?id=5873 Whether any admissions you made during the plea bargaining process would be admissible is a more complicated question. Under the Federal Rules of Evidence, statements made during plea bargaining and allocution are generally inadmissible. http://www.law.cornell.edu/rules/fre/rules.htm#Rule410
Does the prosecutor necessarily mean the DA? Can it ever be the police themselves? Specifically, can anyone ever make a plea agreement with the police?
Referencing your link:
…would seem to indicate that even if one makes an agreement with a questioning officer, regardless of the information presented during questioning, that information would be inadmissible (inasmuch as it constituted a plea) right up to the point of actual testimony in court.
Most jurisdictions do not enforce promises of immunity or plea agreements made by the police. The police lack the authority to bind the state. I found a few cases in which a court ruled statements given under an unauthorized agreement were inadmissible, but those were in the minority.
The rules you quoted specifically refers to plea discussions with an attorney for the prosecuting authority. The police aren’t attorneys.
Even at the local level the prosecutor has to make the plea agreement. On traffic court days our court is very busy so normally we find the people that we have in court and pull them aside. We find out what they want to do, go to trail or make a plea. I usually tell them what I think the prosecutor is going to offer them but I make absolutely no promises. I then go to the prosecutor a deal is made. Everyone is happy. The driver gets the plea he wants. The prosecutor gets the cases resolved quicker and I get to go home early while getting paid my mandatory minimum overtime. Bottom line, the prosecutor makes the deal. The judge approves it.
Enjoyed that video - one key part is that anything you say to the police that is favourable to your case cannot be admitted as evidence (“hearsay”), whereas the police can use something you said to them if it’s harmful to your case.
In the UK all police interviews are tape recorded, with the defendant allowed a copy of the tape (which presumably can then be entered as evidence).
Are police interviews in the US not routinely recorded? Or was it more to over statements made e.g. in the squad car during transit to the police station?
I believe they are and the second half of ivan’s video would seem to bear that out.
I was especially interested in the comments the officer made about turning off his tape recorder in front of a suspect. The room is still being recorded and likely videotaped. Turning off the hand held recorder and speaking quietly gives the suspect the sense that they are speaking in confidence, but in reality, as the man says in the video, the is no off-the-record.
It varies among jurisdictions. Here is a list of states in which recording of interrogation is mandatory statewide: http://www.nacdl.org/sl_docs.nsf/freeform/MERI_legislation Many of these requirements only apply in certain types of cases (e.g., capital or juvenile).
This article mentions that in some jurisdictions recording is discretionary: Illinois (and see Appendix A).
Thanks everybody for their answers! I’m ready now to appear in my first “ripped from the headlines case.” My fear that my attorney will make me roll over as soon as the police turn tough has been alloyed. Of course, let’s hope that I don’t end up with someone like the public defender in My Cousin Vinnie, instead I want someone like the great Vincent Gambini himself.
It was interesting to hear that this interrogation with the lawyer, the police and the suspect all in the same room, the lawyer telling the suspect “don’t say a word”, and the suspect, goaded beyond belief, spilling out a confession, is mostly a dramatic plot point used to spice up the otherwise boring legal process, and almost never happens in real life. Law&Order - you lied to me!
