Legal Advice - Criminal Cases





WARNING:      I talk to a lot of very smart people, but in my business, it is vital to separate smart from knowledgeable.  No matter how smart you are, if you don’t know the rules, you are not going to be very good at the game.  In the criminal justice game, the losers can be hurt very badly and it will not feel like a game.


        If you can talk you way out of an arrest or a criminal charge, then more power to you.  The problem, however, is if the officer knows more about what he is doing than you probably know about what you are doing.  You have to assume that the friendly gentle police officer questioning you about potentially criminal events is using professionally honed skills to give you the rope necessary to hang yourself (before your arrest). 


That said, consider the following.


RULE #1:  KEEP YOUR HEAD DOWN AND YOUR MOUTH SHUT.  Do not bring attention to yourself.  Follow and obey the law.  Follow all of the traffic rules exactly.  If you find yourself in a confrontation with a law enforcement officer, every word you say is a threat to you.  Even the phrase “I did not do it” can be used as an admission against you in some circumstances.  If you don’t know how or when such a denial can be used against you, then you could already be in too deep.


          “Your attorney, can almost always get you out of jail, but it takes practically an act of God to put words back into your mouth.”


Regarding your Miranda rights:


No matter what they say on television, a police officer does not have to read you your rights unless you have been taken into custody and the officer wants to ask you questions.  If the officer asks the questions before you are arrested, the officer does not have to read you your rights.  If the officer arrests you and  remains silent  while you make statements to him, the statements will be ruled as voluntary and spontaneous (legalese for “you just confessed”). 


        If after your rights have been read to you, the officer may then demand that you answer questions.  He or she may demand answers in an aggressive, forceful and attacking sort of way that makes you think that you have to answer the question.  The officer may act as if your right to remain silent does not apply to these particular questions.  Wrong!  Anything you say after Miranda is said with a knowing and deliberate waiver of your rights to remain silent.  You say that you misunderstood?  Too bad, so sad.


        If you even suspect that you may be the object of a criminal investigation you should immediately inform every law enforcement officer that you will not answer any question or discuss anything until you have had the opportunity to speak to your attorney.  You have nothing to say other than name, address and telephone number until you speak to your attorney.


Your attorney, can almost always get you out of jail, but it takes practically an act of God to put words back into your mouth.”




          If a law enforcement officer is asking, or demanding, answers to questions that you do not want to answer.  You can always tell the officer that you will not answer any questions until you have the opportunity to speak to an attorney.  It is a crime to lie to the police.  Martha Stewart did not go to prison for stock fraud, she went to prison for lying to the police.  The strategy of remaining silent until you can speak to your attorney may cause you to be arrested, but I encourage you to recall the advice set out above.  I will take this opportunity to repeat myself. 


Your attorney, can almost always get you out of jail, but it takes practically an act of God to put words back into your mouth.”


          If the officer says that it is 3:00 in the morning and there are no attorneys to consult at that hour, don’t argue.  Let him know you are willing to wait.  After that you say nothing other than your name, address and telephone number.




          In order to understand the full import of this advice, just imagine yourself sitting next to your attorney in the first stages of your jury trial when the young, clean cut and professional police officer tells the jury that you called him a motherfucking asshole the day after his mother died of cervical cancer.  If you are having difficulty imagining how this scenario will play out against you, please feel free to set up an appointment with one of the lawyers here and we will fill in some of the details for you. 




          Ask any criminal defense attorney how many times they have had a client commit the legal equivalent of setting themselves on fire only to justify it later with the phrase “I was only telling the truth.”  


        If you give any thought to the words coming out of your mouth before you utter them and if you suspect that some of those words might cause you legal difficulty later on, then you are probably correct.  You may not be able to spot all of the legal issues, but if you suspect that you have put you’re your finger on a possible trouble spot, then you are probably correct.  You should not be talking anyway.  You are playing legal games with a professional law enforcement officer who has been trained in the art of getting people to talk when everyone knows that everyone has the right to remain silent.  Even if you think you can hold your own with a professional, it is still a bad idea.  If you can’t imagine how your witty, logical and totally exculpatory statement to the police cannot be used against you, then you have not given this matter enough thought.  You are playing games with professionals who are not playing around and you are taking your freedom into your own hands.   The consequences will be on your head.


 Restrain yourself, you will always have the opportunity to confess later on if you are still of a mind to.


RULE #5:          SHUT UP!!


          Policed officers are allowed to lie to you.  Police officers are allowed to trick you.  Consider the following:


a)     You are stopped by an officer and he has found your marijuana.  He says, if you give me three busts tonight, he will not arrest you.  You spill your guts and arrange for the arrests of your friends, parents and sister.  Assume the officer does not arrest you.  Congratulations.  He then files an APS (affidavit of prosecutorial summary) and the charges are filed against you without being arrested.  Not being arrested is not the same thing as not being charged.


b)     You and your friends are arrested and the officers separate you and your friends.  The officer then comes back and tells you that your friends have all said that your were the one that done it and that you did it on all your own.  According the officer, your friends have all agreed that they are innocent and that you are the fountainhead of all evil.  You of course jump up (as well as you can in hand cuffs in the back of a police car) and tell the officer about how the marijuana really belonged to Mary Sue.  That statement can be used in trial to prove a material element of the State’s case against you even though the statement attempts to put the entire blame on someone else.  Your friends may, in fact, have put it all on you, but in this scenario, you have added to the evidence they have stacked against you with your own mouth.


RULE #6:          SHUT UP!!


          Police procedure frequently calls for immediately separating the witnesses and suspects so they cannot get their story together.  And yet, later on, you are surprised to find that you have been put into the back of a police car along with two of your friends.  You can bet your left testicle (or ovary) that there is a tape recorder or a video being made of your conversation.  Your conversations about where the marijuana is located, whose it is and what you are all going to say the officers later on will be a source of huge amusement  with the jury when they are deciding if you are guilty.  And it will be at least that funny with the judge when he/she has to decide just how vigorously you are going to be shafted.



RULE #7:          SHUT UP!!


          Police officers now have digital recording devices built into their uniforms.  These systems are integrated into the video systems that monitor scenes on the exterior of the police car as well as everything in the back seat of the police car.  If you are speaking to a police officer, or are in the backseat of a police car or if you are even near a police car, you have to assume that every word that you whisper is being recorded in digital quality audio and video.  Your privacy rights are almost non-existent under these fact patterns and the police have no obligations to inform you that you are being recorded or videoed. 


        Of course the real lesson to be learned from all of this, is that law enforcement goes to the trouble and expense if installing these audio and video recording systems because they want to preserve the words they know you are going to utter.  The only thing better for the State at trial than having a police officer testify about the Defendant’s confession is to have the officer testify about the confession and then follow that up with a nice video that repeats it all over again in all of its gory details.


CONCLUSION (FOR NOW):    When an officer is demanding that you answer questions, you are on the spot and you want to say whatever is necessary to make the officer go away and leave you alone.  That is the trap.  Lying is wrong and a crime in and of itself.  Name calling is just plain stupid and ineffective.  You can’t run and you can’t hide.  You want to persuade him/her to go away and no doubt at some point in your past you may have actually accomplished just that feat.  Can you do it again without committing a crime and without making this new situation worse?  If you are able to extricate yourself from a police investigation, then you will not need to talk to me.  I, on the other hand, spend most of my time with the individuals who fail to pull off that hat trick.  Furthermore, I can’t see the future.  So, in the absence of more information about your particular I can only fall back on the standard advice.  Keep your head down and your mouth shut.