Confusions People Make: Don’t talk to Police

Talking to policeAn actual exchange I recently had with an otherwise smart non-lawyer who is confused about whether he should talk to police. Reproduced with his permission.

SMART GUY: What if they say they’re interviewing you as a witness? Do they never take mere witnesses into the interrogation room? Genuinely curious, not challenging your expertise.

DAMON CHETSON: Why would you go into the interrogation room? Just curious.

SG: Are you asking me? The genuine answer is that I don’t know. I’ve never been in this situation. But I’m thinking the most likely scenario in which the police might talk to me — aside from being a victim — is that I’m a potential witness. So I’m wondering if being taken to the interrogation room is a giveaway that they’re really thinking of you as a suspect and not a witness.

DC: Let’s assume you’re going to be smart about it, and you’re not going to talk at all without a lawyer present. Problem solved.

But… the lines between a victim and a witness and a suspect and a charged person (aka defendant) are sometimes not clear, especially to investigators who were in nearly all cases not present for the criminal act and are trying to piece together what happened and who was responsible from conflicting bits of information. It’s rare that there’s video, and even if there were video, video can be misleading. I’m not sure what sort of scenario you’re thinking of. Also, let’s call it an “interview room” which is what it’s normally called, or just an office. Or just a room. Police officers aren’t magical. They are trying to piece together what happened.

So it is a conversation. But the conversation with a police officer isn’t an even-handed conversation. One party automatically has special powers (if a federal agent, particularly) or has special credibility. You don’t. By “you” I mean specifically, Smart Guy, and all other people who are not law enforcement officers in their official capacity.

SG: Okay, so is your advice to never answer questions from a police officer ever without a lawyer present? For example, say a burglary happens across the street. The police are talking to all the neighbors to see what they might have seen or heard. Should I refuse to talk without a lawyer? Genuinely asking.

DC: That would be my general advice. There could be a specific circumstance, but your example would not be specific enough.

SG: So what should I say? “I’m sorry, but I never talk to police without a lawyer”? Might that not paint a target on your back? Again, genuinely asking.

DC: Why would you be painting a target on your back? Here’s what I would say. I was told once by a lawyer never to talk to police. I just don’t talk to police. But I’d be happy to talk to you with him present or him on the phone. Give them my phone number – (919) 352-9411 – and have them call me. I’ll find out what’s up, then we can decide whether you should talk.

SG: Most people would probably just say, “Sorry, I didn’t see anything.” Or, if they did see something, “I saw a car I didn’t recognize parked across the street around 9pm.” Most people’s instinct is to be cooperative, especially if they genuinely had nothing to do with the event in question. Now maybe that instinct is wrong, but I think it’s real. So if you’re the one guy saying, “I won’t talk without a lawyer” when everyone else is trying to be helpful, I think that might make the cops take a closer look at you.

DC: Ok. What are we now talking about? The fact that MOST people talk? Or the fact that people should not talk? Also, while we’re here, can we search your home Mr. Whitman just to make sure that there’s nothing amiss?

Your example is a bad example for this reason: what if there was no burglary.

What if the neighbor was committing insurance fraud and filed a false report. What if, in his effort to make it look real, he starts pointing the figure at the Smart Guy who lives across the street. We can spin out a million scenarios, but that’s one that’s a problem for you, Smart Guy. And before you say, “that’s really far fetched,” note well: I’ve had a case like this.

Incidentally, if they do take a closer look at you, they will be doing it without you making statements that could get you in trouble. And if you aren’t involved, then you’ll probably be fine. And if you are involved, you’ll be better off not making statements. So it’s a win-win.

Invocation of Your Right to Remain Silence

Anyone involved in the criminal justice system – be they prosecutors, police officers, defense counsel or judges – understands the importance of remaining silent prior to going to trial, even in cases where the eventual accused may be entirely innocent of the charge.

Years of living and working within the system teach participants that only the fool speaks to a police officer or investigator without the protection of counsel or, in many instances, a formal immunity agreement.  And so when a defendant comes to court, and the jury is told by a testifying officer, in response to the prosecutor’s question, “Did the defendant sit down with you for an interview?” that the Defendant declined this kind offer, everyone in the courtroom, except the jury, understands that the Defendant exercised not only a valuable right, but probably made a wise decision.  It’s also a decision they would all make if they were confronted with a criminal investigation.

Lay people – by which I mean, people who have very little or no experience with the criminal justice system – are often perplexed.   This is especially the case when I meet with someone who is facing an investigation, and who insists that he or she did nothing wrong.  They believe that if they could only just explain to the officer the circumstances behind their actions – because they are, of course, innocent or at least, not really guilty – they could escape the nightmare that is about to unfold.

And so they want to speak.  They want to tell their story.  They want to confide in a sympathetic officer who might be willing to let this matter slide.

It never makes sense to speak with a police officer except with the advice of counsel.  And in most cases, even when counsel is hired, it doesn’t make sense to speak to police.  If you’re guilty – by which I mean, guilty of anything – then speaking to the police officer gives the officer almost all the evidence he needs to convict. If you’re not guilty – by which I mean, you’ve never done anything criminal culpable in your life, then you are from a magical land not called “The United States of America.” Either way, speaking to police without the advice of a lawyer is almost always bad, and many times catastrophic.

Jason Young understood that in 2006 when he was approached by Wake County Sheriff’s Deputies investigating his wife’s homicide. He did not speak. Whether this was part of some grand plan he had to kill his wife and avoid a conviction, or whether this was because he just understood the consequences of speaking as the husband of a dead woman, I cannot say.

In 2011, he came to trial. Much was made by the prosecutors when he did take the stand that this was the first time he had spoken in public about matter. He explained that he had been advised by friends, family, and his attorney not to give a statement way back when to investigators.

Importantly, by not speaking, whether he killed his wife or not, he denied the prosecutors a valuable tool: the inconsistent statement.

Everyone in the system knows that when someone speaks about an event on multiple occasions, he will invariably give different statements. Prosecutors focus on the inconsistencies, identifying them to jurors as signs of lying.

Jurors – even in though in their personal lives they have experience telling slightly different stories in spite of the best of intentions – seem to forget that peoples’ stories can change. They are susceptible to the prosecutor’s canard that every statement must be completely consistent, or else the person must be a liar.

Jason Young’s first statement in 2011 was good enough for most jurors in his original trial. The majority voted to acquit. Judge Stephens ruled it was a mistrial. And so a second trial was held in 2012. This time the prosecutors had a prior statement, which was Young’s testimony in 2011. And, while Jason Young did not testify in his second trial, the prosecutors played his prior testimony, and then impeached it with “new” evidence, which would be the fact that, wisely, he did not contest a wrongful death civil suit and therefore, because of his failure to respond, was deemed to have “admitted” the allegations therein.

The second jury convicted him. He was sentenced to life in prison.

The North Carolina Court of Appeals heard arguments today about this issue, among others.

Shock and Awe: North Carolina Criminal Law Up Close

When I meet people who are accused of or under investigation for serious felonies – sex offenses, drug trafficking, pornography crimes, frauds or theft crimes, and homicides – they typically have a very naive view of the Raleigh criminal justice system.

This naive view is especially true of people who have never been in trouble before with the law, or have had, at most, speeding tickets.

In most cases, people form their impressions of the legal system from television dramas, such as NYPD Blue or The Shield or The Wire. Because most day-to-day criminal law is governed by state law, the laws of particular states govern how criminal procedure works in that state.

For instance, if you watched NYPD Blue, you would have the impression that:

  1. Assistant District Attorneys (Riding DAs) make charging decisions, particularly in felonies.
  2. A Grand Jury meets within seven (7) days of arrest.
  3. That, if someone simply tells the truth, they will be better off.
  4. That there is a specific Speedy Trial statute that brings the matter to speedy resolution.
  5. That only the guilty are convicted.

First, in North Carolina, for the vast majority of felonies, the police make the charging decision. In certain cases – high profile cases, including, in some cases, murders, sex-offense related cases, large financial crimes, and drug conspiracies – the prosecutor in North Carolina will make charging decisions. And, of course, the prosecutor has ultimate control over the ultimate charge, although the initial charging decision can have a huge impact on the case.

The initial charging decision will impact bond and pre-trial release conditions. The initial charging decision also creates a criminal record, including an order for arrest that will ultimately result in a public record including the arrest (which can only ultimately be removed by expungement, if available.)

Second, in North Carolina, the grand jury, except in special cases, does not meet to discuss a case until months after the initial arrest. In some cases, the person’s case can remain in District Court (where most felonies, and nearly all misdemeanors begin) for four or more months before a Grand Jury is convened to indict the case.

Next, in other states – NY for instance – the grand jury is a more open process where the defendant has a right to testify. While it may not make sense for a defendant to testify before a grand jury, in certain cases – including cases where the state’s case is very weak and where the defendant is innocent – it may make sense to have the defendant testify in order to shorten the whole process.

Fourth, in many states, the Defendant has speedy trial rights. In North Carolina, the Speedy Trial statute was repealed in the 1970s. That creates a curious situation, in which, while the Defendant may have rights under the United States Constitution to a speedy trial, the Defendant’s rights to a speedy trial do not kick in for years.

Finally, in North Carolina, the prosecutor controls the calendar, which creates another problem for Defendants in that the prosecutor ultimately has more influence over when and where a case comes to trial.

This unique set of circumstances means that, in practice, North Carolina’s criminal procedure is quite different from other states, affording the Defendant fewer rights, particularly in the early stages of the case where the Defendant has no rights to discovery under State law.

It can be months before a defendant even gets to see what evidence the prosecutor has, putting the defendant at a severe disadvantage.

The one bright spot is that North Carolina features open-file discovery which permits the Defendant to receive virtually the entirety of the state’s records in the case.

Surrendering at the Wake County Detention Center

A few months ago – before the Wake County Sheriff’s Office re-opened the Wake County Detention Center at 3301 Hammond Rd. – I made a video on the basic idea behind surrendering. This is not legal advice, but rather intended to be informative. If you are facing criminal charges or facing an investigation, you should contact a lawyer as soon as possible. The life (and freedom) you save may be your own.

In any case, this video has some information on how to appropriately surrender to authorities. It is a little outdated since surrenders now take place at the Wake County Detention Center, rather than the Public Safety Center in downtown Raleigh. And the First Appearance courtroom has been moved from the jail courtroom, to courtroom 5A in the Wake County Courthouse. First Appearances are now almost exclusively by video monitor.

If you have questions on how to surrender if you’re being investigated by Cary Police, Raleigh Police, or other officers in the area, please call a criminal defense lawyer who focuses on Raleigh cases or Wake County criminal defense.

My office offers free consultations at [#phone#].

Hiring a Criminal Lawyer before an Arrest

The old adage “penny-wise, pound foolish” applies in considering whether to hire a Raleigh criminal lawyer early in a case. That’s because many cases may be dramatically affected by hiring a lawyer early in the process – before an arrest – when the police are still gathering information, and themselves trying to figure out what to do in a matter.

In an ideal world, the moment a police officer or detective came to talk to you about a matter, you could press a button and your own criminal defense attorney could parachute into the situation to help you defend your rights.

In this world, hiring a lawyer will take initiative on your part. First, hiring a Raleigh criminal attorney early in the matter will generally save you money. Unfortunately, before you’ve been charged with a crime, you are not entitled to a public defender. Even if you may not have the money to hire a lawyer for the entire case, it almost always makes sense – both financially, and to protect your freedom and rights – to hire a lawyer before you say anything to anyone about a matter, even if you are complete innocent.

People often have trouble with that concept, believing that if they are innocent, they should have nothing to hide. Unfortunately, criminal investigations are not handled by unbiased, entirely objective and omniscient detectives. They are investigated by police officer who, however one may think of them as honorable public servants, have their own biases, prejudices, assumptions, and beliefs.

They may have been told a pack of lies by the victim or the victim’s family, and therefore believe that, no matter what you say, you are guilty of the crime.

In any case, it will almost always damage your case to give a statement prior to arrest. Hiring a lawyer can effectively protect you from giving a statement, while at the same time keeping communication lines open to law enforcement to allow the exchange of information that may stop charges from ever being made.

Finally, most people assume that hiring a criminal defense attorney early in the process is expensive. They assume that the attorney will charge some astronomical fee, like $10,000, to handle a case pre-arrest.

In very complicated cases, a large fee may be required to hire an attorney before an arrest has been made. But most pre-trial legal fees are much less expensive than you would imagine, and can end up saving a lot of money and heartache and grief down the road.

Child Molestation in North Carolina Law

Being confronted with allegations that you have committed a sexual act on a young child is one of the scariest moments in anyone’s life. When small children claim they have been molested, the whole apparatus of Wake County’s government moves into gear. Perhaps the allegation is made to a teacher. Or maybe a relative says that the child has said something about being touched, or being fondled.

Sex crimes against children carry with them special consequences which can test the ability of any criminal defense lawyer. First, there are the Child Protective Services caseworkers and social workers who are mobilized to investigate the matter. They may talk to the victim in a special room at the Wake County Department of Health & Human Services.

Second, investigators from the local police agency will be involved. Perhaps a detective from the Cary Police Department or Raleigh Police Department will pay a visit to the family, and to the alleged perpetrator. Investigators bring their own biases. Some believe that children never lie, and if they are discussing intimate sexual acts, they must be telling the truth when they claim that someone has touched, fondled, or made them perform sex acts.

Third, perhaps these allegations are raised as part of nasty divorce proceedings, where allegations are used to both damage one of the parties or to make sure the someone is denied custody.

Fourth, these allegations, if they result in a conviction, will nearly always result in a requirement that the person register as a sex offender for at least 10 years, which means that that person’s movements may be tracked by satellite based monitoring, and that person’s choice of residences and workplaces will be carefully scrutinized to ensure they are not near places where children congregate.

Because allegations of rape of a child, or molestation of a child, can have such profound effects, and because we live in a society where children who say such things are presumed not to like, ensuring that you aggressively defend against such charges requires hiring a lawyer who understands how to build the strongest possible defense to these charges.

Before talking to anyone about these issues, call an aggressive criminal lawyer who will protect your rights, build a defense, and begin preparations in case the allegations result in criminal charges.

When a Confession is Not Enough

A man walks into a police department and announces, tearfully, that he killed a young boy 33 years ago. Case solved, right?

Not so fast. News that New York Police have solved the mystery surrounding the disappearance of Etan Patz in 1979 now gives way to the cold hard legal fact that the confession alone, absent corroboration, is not enough to convict someone of a crime.

The rule – corpus delicti – applies across the criminal law. In North Carolina, the case is frequently applied in DWI cases pursuant to State v. Trexler, which is often deployed by defense attorneys in cases where a DWI is charged following an accident.

In the Anglo-American legal system, the concept has its outgrowth in several principles. Many jurisdictions hold as a legal rule that a defendant’s out-of-court confession, alone, is insufficient evidence to prove the defendant’s guilt beyond reasonable doubt.[1] A corollary to this rule is that an accused cannot be convicted solely upon the testimony of an accomplice. Some jurisdictions also hold that without first showing independent corroboration that a crime happened, the prosecution may not introduce evidence of the defendant’s statement.

In Trexler, the North Carolina Supreme Court cited State v. Parker:

We adopt a rule in non-capital cases that when the State relies upon the defendant’s confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.

We wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant’s confession. Corroboration of insignificant facts or those unrelated to the commission of the crime will not suffice. We emphasize this point because although we have relaxed our corroboration rule somewhat, we remain advertent to the reason for its existence, that is, to protect against convictions for crimes that have not in fact occurred.

Given the age of the Etan Patz case and the fact that so little evidence exists that the child was, in fact, killed, it may be difficult for the New York City District Attorney’s office to, in fact, prove the current suspect is guilty of Second Degree Murder.

The Right to Counsel of Your Choosing

The United States Constitution’s Sixth Amendment guarantees a Defendant’s right to counsel. That right to counsel attaches at the first hearing – Rothgary v. Gillespie – where the Defendant’s liberty interest is at stake:

…a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

The Sixth Amendment’s right to counsel includes two particular individual rights – the right to appointed counsel in cases where the person may be subject to imprisonment – which in North Carolina includes misdemeanors, but not infractions.

The Sixth Amendment’s right to counsel also includes the right to a counsel of one’s choosing, provided the person can afford to hire that lawyer. In other words, a person who has been appointed counsel may not choose the lawyer he likes best. But a person who has been appointed a lawyer, and then wishes to hire a lawyer, is constitutionally guaranteed to have that lawyer at proceedings.

The court may prohibit certain attorneys from serving as counsel. For instance, in the recent Johnny Edwards case in Greensboro, the United States District Court Judge Catherine Eagles prohibited certain lawyers who had a conflict from appearing as counsel on behalf of the defendant. See Wheat v. United States

But in general – absent those conflicts – the defendant is allowed to choose who he wants to appear on his behalf.

So if you’re ever in court and want to choose your own lawyer, while you’ll need to pay for that lawyer, be sure to make sure that the Court honors your right to have the lawyer of your choosing at the hearing.

See the Wikipedia entry on this issue.

What is an Arraignment?

An arraignment is a formal reading of a criminal complaint, almost always in the presence of the defendant.

In North Carolina, arraignments vary by crime type. In the case of misdemeanors, a person is usually arraigned just once – immediately prior to either taking a plea or immediately prior to trial.

In the case of felonies, a person is usually arraigned at least twice. In North Carolina, the person will be arraigned within 48 hours of arrest. At this time, no plea is entered. The person will be arraigned, informed of his or her charges, informed of his or her right to a lawyer, and, if the person is still in custody, bond will be set by a judge.

After that arraignment, the person is free to leave court if the person has bonded out of jail. Or the person is returned to jail to await the next hearing.

If the person enters into a plea agreement or decides to go to trial, the person will be arraigned again, this time before the plea of guilty or not guilty is entered. Then either a plea colloquy will begin (in which the person answers questions before a judge who decides whether or not to accept to plea and how to sentence the person) or the trial begins.

Following indictment in felonies, the person typically can enter a Waiver of Arraignment (also called a stipulation or a “stip”) which is a way of avoiding the formal arraignment.

Since the arraignment lacks meaningful value in most cases, it’s usually waived to avoid unnecessary visits to the courthouse.

City County Bureau of Identification vs. the State Bureau of Investigation

In criminal case in Wake County a jury might hear from agents from at least two state agencies (in addition to other local or national law enforcement agencies). Those two agencies are called the City-County Bureau of Identification (CCBI) and the State Bureau of Investigation (SBI).

Both organizations were created in 1937 by the North Carolina General Assembly. The State Bureau of investigation (SBI) is sort of like a state version of the Federal Bureau of Investigation (FBI) although more limited in scope. The SBI, administratively under the North Carolina Department of Justice, has both field agents who conduct investigations and can make arrests, and a crime lab.

In recent years, the crime lab has come under intense scrutiny after it was reveled that a number of agents had either mischaracterized results or failed to disclose negative results that led to the conviction of people who were otherwise innocent.

(At least one of those people wrongfully convicted – Greg Taylor – on the basis of SBI agents’ misconduct has decided to sue those agents.)

In response to the misconduct by SBI agents, a panel was established to provide recommendations to North Carolina Attorney General Roy Cooper to lead to the improvement of SBI practices and procedures. The Ombudsman released a report designed to provide guidance to the Attorney General with respect to improvements.

The State Bureau of Investigation has published various manuals and procedures for each of the areas that the crime lab performs analysis.

The City-County Bureau of Identification is a different organization, focused solely on Wake County. It provides crime scene assistance to agencies throughout the county, and is housed in the Public Safety Center (also known as the Wake County Jail) on Salisbury Street.

Its field agents go to scenes, collect evidence, and either turn it over to the police agency (Raleigh Police Department, Cary Police Department, and so forth) or send it off to the State Bureau of Investigation for further analysis. Occasionally its evidence is analyzed by other CCBI agents – for instance, computer data may be analyzed by CCBI agents or fingerprint analysis might be completed in-house at the CCBI rather than be sent off to the SBI or FBI for further analysis.)

In addition, until recently, most DWI investigations involved a CCBI agent who operated the Intox EC/IR II device – the breathalyzer – that is used to take breath samples from suspected drunk drivers and spit out a number such as a .08 that can be used at court.

Now, most Intox EC/IR II device operators are the police officers themselves who now have certificates.



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