See post 10. I have no need to familiarize myself with all 50 states but I certainly can’t do that.
Not sure I believe the OP about police being allowed to make a false offer of a plea bargain. This seems to be exactly the sort of thing the SD report calls a coercive “extrinsic misrepresentation” that the courts will not allow. Besides, it’s likely to backfire. The defense attorney can put the interrogating officer on the stand and ask point blank if he/she lied to the defendant to extract a confession, and point out to the jury that an innocent person might well “confess” if offered a deal of, say, a year in prison vs. a possible life sentence if convicted. It also makes for embarrassing newspaper headlines.
Someone pointed out to me, also “Anything you say can and will be used against you.” Never for.
“Mr. Cop, do I need a lawyer?”
“Why would you need a lawyer? You’re not guilty are you?”
Versus
“Mr. Cop, I think I need a lawyer.”
“You don’t need a lawyer. You’re not guilty are you?”
Not hugely different, but could be perceived by some as distinct enough to pass muster.
We are not allowed to make any sort of promise. Even promises that we have every intention of keeping. No promises or coercion.
In my state both would get the interview thrown out. No doubt at all. I saw an interview thrown out when a suspect looked up at the ceiling and asked himself “Should I get a lawyer?” No one said anything. No one suggested he didn’t need a lawyer. The judge ruled that he should have been immediately re-Mirandized. No we are not allowed to even hint at talking someone out of invoking their rights. This guy was a murderer by the way.
We are allowed to lie about certain facts but certainly not about your rights. It’s also usually a bad idea to lie and I would only do it as a last resort.
Like I said above this is for my state. Each state has their own set of caselaw. Each state may have more strict requirements than federal caselaw or it may just follow the minimum requirement set out by the Supreme Court.
Same in Commonwealth countries that have followed the English confessions rule: if a person in a position of authority induces a confession by offering some benefit, the confession is excluded.
Well, I just have to reiterate, the book definitely said police sometimes elicit a confession under false plea deals. Read the book, if you don’t believe me. (The book covers a lot of deep topics, but it written like on a 5th grade level. You can probably read the whole thing in 5 minutes. I’m serious.) And again, this was over 20 years ago, at that.
I don’t know how they could get away with it, either. But you know, some areas of the country are much more conservative than others. And, I can’t provide a cite, but it is a well-known fact, that some lower court judges sometimes go to the beat of their own drum, a little. It is theoretically impossible. But who’s going to stop them? Judges have life-long appointment, with little oversight.
Just something I thought I would throw out there. (Now please carry on with the rest of the discussion:).)
Corruption is always a possibility in the legal system and it’s something that you’ll never be 100% free of, but I don’t know how helpful it is when discussing the law to mention that some people in the system don’t follow the law. You might as well not even talk about the law at that point. It’s like discussing the rules of football then pointing out that sometimes people cheat; sure it happens but it’s irrelevant.
There’s always some risk in getting it all off your chest during a police interrogation: http://imgc-cn.artprintimages.com/images/P-473-488-90/90/9026/YKIB500Z/posters/david-borchart-perhaps-i-ve-said-too-much-new-yorker-cartoon.jpg
The opposite question: I heard it somewhere that it is a crime to lie to the police. While it seems like a pretty bad idea, can you be prosecuted for making false statements during questioning?
By the Feds, yes. Never heard it happening in a state case.
I would think you could be charged with “obstruction of justice”. False statements to the police can also be used against you in court, to impugn your credibility.
Could be worse, the police could act like the Japanese police which interrogate suspects more than 10 hours a day for 23 days per charge behind closed doors and without a lawyer.
Just because you are a judge does not mean you have a lifetime appointment. In fact that is very rare.
I don’t have to read your book I do it for a living. I know what is and isn’t allowed in my state and all interviews have to be recorded. I clearly state that states can be more restrictive than the Supreme Court mandates. That was my entire point. You can’t make blanket statements about what the police are allowed to do because it is different depending on which state.
Again laws differ from state to state but it depends on the lie. For instance lying and saying you didn’t do it wouldn’t be a crime. Lying and giving information that someone else committed the crime could be. So is lying about your identity to avoid arrest.
Police can lie in an interview. They can mislead, too. In fact, they often mislead a suspect into believing they know more than they do. It’s good police work.
They can’t lie in the courtroom though. At least, not with immunity.
The only person allowed to lie in the courtroom is the DA (prosecutor). In fact, he’s expected to lie. By lie, I mean promote facts that he merely assumed may have happened, regardless of whether he has any rational reason to believe they actually happened. The DA is free to be as creative as he chooses with respect to interpreting the evidence.
You can in Colorado. There’s a law against “attempting to influence a public servant.” I think it’s an incredibly stupid law, because it’s so extremely broad. Any reasonable person would think that such a law would apply mainly to attempted bribery, but this one covers just about everything you could possibly imagine, and probably a bunch of stuff that you couldn’t imagine.
Here’s an example.
CRS 18-8-306:
“Any person who attempts to influence any public servant by means of deceit or by threat of violence or economic reprisal against any person or property, with the intent thereby to alter or affect the public servant’s decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member, commits a class 4 felony.”
The counsel for the defendant is also allowed to be creative with the facts, primarily in opening and summation. There are some limits, though, and either attorney has the right to object to outrageous assertions made by the opposition.
But my question might pertain to something like forfeiture. If I am stopped by an officer and he asks me if I have any cash in the car, am I going to tell him that I have four thousand dollars? Hell no, because I know he will just take it and make me jump hoops to get it back.
Not so. A prosecutor has an ethical obligation to see that justice is done, not to get a conviction by lying, shading the truth or interpreting the evidence only in ways that are helpful to his case.
“The United States Attorney [or any prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78 (1935).
Do all prosecutors meet this high ethical standard? Alas, no.
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