If You’re in a Pickle, Take the Nickel: You Have the Right to Remain Silent. Use It.

nicklePolice dramas have been a staple of American television for more than five decades. The interrogation is high drama, the dogged cop matching wits with the street-smart criminal. There is little evidence in the case and the cop needs a confession to make his case. The cop reads the suspect his Miranda warnings, “You have the right to remain silent, etc.,” the words most all of us could recite by memory after years of watching police shows. The suspect says he understands and agrees to talk. The tough, righteous cop and the wily criminal engage in a game of cat and mouse and when the cop cuts too close to the bone, the criminal stares him dead in the eye and says, “I want my lawyer” and just like that it’s over. The suspect invokes his Fifth Amendment right and all police questioning comes to a stop. Now the cop has to figure out a different way to get his man.

Another show, another scenario. A game of good cop, bad cop. The “bad” cop feigning frustration, storms out of the interrogation room for a smoke, leaving the “good” cop with the scared suspect. The “good” cop tells the suspect it’s ok, everything will be all right, he can help himself by telling the cop what happened and confessing to the crime. “Help yourself. I’ll go to bat for you with the DA.” Breaking down the suspect pukes up every piece of information he has and then goes to prison for a really long time.

Since the 1966 Supreme Court decision in Miranda v. Arizona, police are required to Mirandize or read Miranda warnings, which we have all become familiar with, to suspects before custodial questioning. In Texas, we refer to the Texas version of Miranda as the legal warning. This requirement is so important that most officers in Houston carry a small blue card imprinted with the warning. If an officer fails to read the warning and get a knowing, voluntary waiver from the suspect before questioning, the suspect’s statement is inadmissible at trial. Most of the time, police get this step right but what is most surprising is how often suspects give up their Fifth Amendment right and effectively eviscerate any potential defense before they get the benefit of sound legal advice.

It’s a “C’mon, man! Don’t you watch tv?” moment.

Suspects seem to forget that they (1) [have] the right to have a lawyer present to advise [them] prior to and during any questioning and (2) if [they] [are] unable to employ a lawyer, [they] [have] the right to have a lawyer appointed to advise [them] prior to and during any questioning. My first piece of advice is don’t commit a crime. My second piece of advice is if you just can’t help yourself and find yourself on the wrong side of the law and on the inside of an interrogation room, you might want to consider the following information.

MIRANDA NOT REQUIRED UPON ARREST

Clients often complain to me that police didn’t read them their legal warning when they were arrested in the hope that this failure is a “get out of jail free card.” It is not. My first question is always, “Did they ask you any questions?” In the vast majority of cases the answer is “no.” Criminal defendants tend to equate Miranda warnings with arrest. Police do not have to read the legal warning to a suspect upon arrest. Miranda is triggered only when there is a custodial interrogation. Custody does not always mean arrest either but that is the most common circumstance for interrogation. Custodial interrogation is questioning initiated by law enforcement officers — this includes prosecutors — with the intent to elicit incriminating information or a confession after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, the freedom to leave being the most common restraint. Custodial interrogation does not include questioning necessary for public safety, standard booking questions, if the police have a jailhouse informant talking with the suspect or questions asked during routine traffic stops for traffic violations.

CUSTODY+MIRANDA = ASK FOR A LAWYER

Nothing good happens in an interrogation room. Not for suspects, anyway. Pay close attention to what I am about to tell you. You ready? Ok, here it is — THE POLICE ARE NOT HERE TO HELP YOU. EVER. Did you get that? I don’t care how many times the police officer tells you that confessing will help you — seriously? Who buys that line anyway? — it will not. I assure you, nothing good comes from confessing, not for the suspect. But the police officer’s case just got a lot better. I recently represented a young man, a kid really, charged with a very serious crime. He was originally arrested for a misdemeanor but during videotaped questioning police learned that he was associated with a group of teens suspected in a number of serious crimes, the same crime my client was charged with ultimately. Police showed him surveillance stills from one of those crimes and asked if he recognized anyone. He named each of the people in the photos, each one already suspected by police and then he named the one unknown suspect. He said, “That’s me.” Game over. The police did not have any evidence against him for that crime until he waived his Fifth Amendment right and talked. With that statement everything else fell into place in their investigation. I can also assure you that when the officer called the DA’s office to file charges he did not tell the ADA on the phone to cut my client a break for confessing. A confession makes a bad state’s case good and a good state’s case great.

POLICE OFFICERS CAN’T MAKE DEALS

Police officers do not have authority to make deals with suspects. They cannot promise probation or a light jail or prison sentence. Only a prosecutor can make deals. Period.

POLICE OFFICERS CAN LIE TO SUSPECTS

In 1969, the Supreme Court decided in Frazier v. Cupp that police can use deception to elicit confessions. This does not mean police have carte blanche; there are certain limitations. For example, in Wilson v. State, a case decided by the Texas Court of Criminal Appeals in 2010, the Court distinguished between deception that involved lying and deception that violated the law. The Court threw out Wilson’s confession because the interrogating officer showed the defendant a faked crime lab report identifying Wilson’s fingerprints on crime scene evidence. If the officer had only told Wilson he had a lab report that his fingerprints were on crime scene evidence, there wouldn’t have been a problem. However, creating a fake crime lab report went beyond simple deception because it violated a Texas law that makes it illegal to tamper with evidence. Bottom line, if the officer has evidence of your guilt — fingerprints, DNA, a co-defendant’s statement — your confession isn’t necessary, is it? So, don’t give one because you never know when the officer is running a bluff.

DON’T TRY TO TALK YOUR WAY OUT OF IT

It never ceases to amaze me how many clients think they can tell a believable lie. Some statements are so ridiculous that anyone who hears such a statement is left with the impression that the person is guilty. Let’s be real with each other for a moment. If you haven’t made it past the 9th grade, you’re not going to outsmart a police officer or a prosecutor and you’re certainly not going to outsmart a jury. Do yourself and your lawyer a favor and keep quiet. Silence is preferable to a story that anyone with a spec of common sense can see through.

YOUR LAWYER IS NOT A MIRACLE WORKER

Good lawyers can be of great service to their clients. We can get your case dismissed if we can convince the ADA or the judge that there was no probable cause for a traffic stop or that evidence was obtained by a bad search in violation of your Fourth Amendment right, we can even get your statement thrown out if it was obtained by violating your Constitutional rights. What we cannot do is undo your bad decisions that have no legal remedy. We cannot file a Motion to Change the Facts. You are the only one who can waive your rights. Officers often make mistakes in search warrants so make them get a warrant if they want to search your house. A mistake in the search warrant may result in the evidence being suppressed. When you freely, knowingly and voluntarily waive your Fourth Amendment right and allow the police to search without a warrant it is unassailable and absolute. When you freely, knowingly and voluntarily waive your Fifth Amendment right and confess, that too is unassailable and absolute. If the police have done it right and you gave them the ammunition to use against you, you just made your lawyer’s job infinitely more difficult and in some cases impossible. If you have something useful for the police or if you are not guilty of the offense, let your lawyer negotiate those treacherous waters for you but don’t sabotage your case and then ask for a miracle. That’s like tying a boxer’s hands behind his back and then telling him to knock out his opponent.

Our legal system has flaws and shortcomings but it nevertheless provides us with certain important rights that were created to protect us from government intrusion and we should absolutely take advantage of those rights. So, if you find yourself in trouble and a police officer wants to have a chat with you, you may want to remember this simple phrase, “if you’re in a pickle, take the nickel.” Then get a lawyer.

 

 

Hobson’s Choice and the Fifth Amendment

password-866978_960_720Francis Rawls is being held in a jail cell, without bail and without any formal charges being filed against him, until he agrees to incriminate himself.

If that sentence doesn’t chill you to the core of your being, then I don’t know what could.

Rawls is suspected of accessing child pornography, which is of course one of the most heinous crimes a person can commit in our society, without a doubt, and no one is condoning such behavior. But you’ll notice I used the word “suspected” and not “charged” or “indicted.” No, Rawls is being held without any charges being leveled against him. Full stop. Do not pass Go, do not collect $200. To add insult to injury, law enforcement officers and a federal court are both demanding that Rawls provide a password to two encrypted drives, for which a search warrant has been executed. He claims he does not remember the passwords and thus cannot provide them; authorities naturally believe him to be lying.

By way of a primer, the Fifth Amendment of the United States Constitution states the following:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

I would like to draw your attention to the bolded sections especially. First, Rawls is being held without an indictment or presentment by a Grand Jury, which is the typical way felonies are charged in most jurisdictions, including the federal system. Arguably child pornography charges are an “infamous crime,” which would implicate the Fifth Amendment’s requirement for charges to be brought by a Grand Jury before being held. Rawls hasn’t even been charged, let alone indicted; while it is typical to be held pending indictment in most if not all jurisdictions, being held without charges at all is unconscionable under our Constitution.

Second, and possibly more frightening, is the fact that Rawls is being held until he complies with a court order to incriminate himself by providing evidence to the authorities that would more likely than not end up in his eventual conviction. While the Fifth Amendment prohibits compelling a defendant to “testify,” it’s silent on whether or not a defendant can be compelled to give up any evidence at all against him or herself. If we imagine a world where any defendant can be ordered by a judge to provide any and all evidence to law enforcement outside of true testimony, it’s clear to see that the writers of the Constitution most likely meant to include any type of self-incrimination, not just testimony.

And so the Hobson’s Choice for Francis Rawls has materialized: Provide the password to the encrypted drives, with the inevitable subsequent charges being filed almost immediately; or stay in jail indefinitely, without bail and without being charged, for invoking the Fifth Amendment.

Naturally, Rawls has opted to invoke his Fifth Amendment right (not privilege, not option, but right) to remain silent and to not testify against himself, in any way. Arguably as he should! The government cannot be allowed to brute force its way into incriminating evidence if it doesn’t know how to go about getting that information. Just because you have a search warrant doesn’t mean I have to help you search my house.

Invoking the Fifth Amendment should not be penalized, at all, by any mechanism within the judiciary or law enforcement. Without this protection, people would either be compelled to testify against themselves or trapped in jail until they eventually crack and give in. What kind of free and just society, guided by due process and the rule of law, locks up people indefinitely without bail, without charges, without a trial and without proof? And then, what society asks that person to provide proof against himself as he sits detained indefinitely? An unjust society, that’s what. Not the United States of America. Not us, not here. (Yet, it’s really happening.)