Regent Law Don’t Talk To The Police


Regent Law Don’t Talk To The Police

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[Regent Law Don’t Talk To The Police]

In Praise of the Fifth Amendment Right to Not Be a Witness Against Yourself.
Why I am proud to admit that I will never talk to any police officer.

[James Duane:] Source:
I was invited to give you a taste of a typical law school classroom experience here today, and I thought I would take advantage of this opportunity to do something that’s been on my mind for a while. To stand up and to proudly say God bless America. God bless the bill of rights and thank God for the Fifth Amendment. I’m not ashamed to say, I’m proud of the fifth amendment, and I’m not – I’m proud to admit on camera, and on the Internet that I will never talk to any police officer under any circumstances, with all due respect sir.

I’m doing something really extraordinary here today, something you’ll almost never see another law professor do as long as you live. I’m really putting myself on the spot here. At my – this was my idea. By my invitation, I have given up half of my time, approximately. I’m giving equal time and the last word to an expert who really knows something about what I’ll be talking about. So I’m opening myself up to the possibility that he will contradict me.

I was a criminal defense attorney when I was in private practice. So I want to make sure in fairness to you, if I’m misleading you or giving you a slanted or one sided presentation, you’ll be able to get the last word from somebody else. I’m sure he’ll have a lot to teach all of us, including myself.

In Praise of the Fifth Amendment
*The Fifth Amendment provides:
*”No person … shall be compelled in any criminal case to be a witness against himself.”

[James Duane:]
The Fifth Amendment of the United States Constitution provides: “No person shall be compelled, in any criminal case, to be a witness against himself.” And this unfortunate amendment has gotten a bad rep, in recent times, much of it tragically and unnecessarily through, as you may have heard, the headlines.

Let me read to you something that, uh, was taken out of the newspaper this morning, and I want you to listen to it closely, and I’m giving you a heads up, I’m warning you in advance, which is not fair to you. Not fair to me! But I’m giving head – I’m giving you warning that I’ll be quizzing you on this in just a few minutes. This’ll test your aptitude for legal study and legal practice. Listen closely, it won’t take long.

“Last night. Agents of the Norfolk police department found three victims of an apparent murder dead in an apartment in the east Ocean View area. The apparent victims of a gangland style slaying, and possibly the victims of gang related violence. The police are investigating this as a possible murder and suicide, but right now suspect that the three were all killed by the same individual. No suspects have yet been identified in the slaying, but veteran police detective George Bruch has confirmed the police are following up on evidence pointing to the possible involvement of an off duty navel officer as the perpetrator. The bodies which were found by the apartment manager at about eight o’clock in the morning appeared to have been slain some time earlier in the same evening, probably some time between midnight and two o’clock in the morning.”

That’s it. Those are all the facts I’ll ask you to remember, and it won’t be for very long either. Let’s see how well you do. I’ll be quizzing you in just a few minutes.

The Easiest Question You Will Ever Get From a Client
“The police are here. They want to talk to me. What should I do?”

[James Duane:] Now.
Now. Here’s the easiest question, you’ll ever get from a client, in all the days of your life. Question: “Hey, the police are here. They want to talk to me. What should I do?” Well, I could give you my answer to that question, in case you haven’t already guessed it, but why don’t we go to a real expert.

Justice Robert Jackson
* General counsel, Bureau of Internal Revenue, 1934-1935
* Special counsel, U.S. Department of the Treasury, 1935-1938
* Special counsel, Securities and Exchange Commission, 1936-1938
* Assistant U.S. Attorney General, Tax Division, 1936-1938
* Solicitor General of the United States, 1938-1939
* Attorney General of the United States, 1940-1941
* Chief U.S. prosecutor, Nuremberg Trials, 1945-1946

[James Duane:]
Justice Robert Jackson, a prosecutors prosecutor. Like me, he began his private practice in Buffalo New York, years before I did. And after that he served as General counsel for the Bureau of Internal Revenue, the U.S. Department of the Treasury, the Security and Exchange Commission, Assistant U.S. Attorney General for the Tax Division, later the Solicitor General and the Attorney General of the United States, and then the Chief U.S. prosecutor for the Nuremberg Trials. That’s an impressive resume.

Justice Jackson’s View
*”[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
*Watts v. Indiana, 338 U.S. 49, 59 (1949) (Justice Robert Jackson concurring in part and disse… emphasis added)

[James Duane:] Source:
Years later, when he was a Justice on the Supreme Court, Justice Jackson stated quote: “Any lawyer worth his salt”, today we would say his or her, “will tell the suspect”, his client, “in no uncertain terms to make no statement to the police under any circumstances.” There’s the title of my talk.

I’m here to explain to you, the surprising, and somewhat counterintuitive, and admittedly unlikely reasons why Justice Jackson was right. I’m reminded of this because I’m amazed, we’re all amazed, by the frequency with which we see newspaper articles coming out all the time from people who really ought to know better who say “well I’ll talk to the police, I mean after all I’m – I’m a senator, I’m a- I’m O. J. Simpson, I’m a – I’m an experienced highly polished individual, I’ve got a lot of experience with public relations,” even criminal defense attorneys.

There was a local news story here in the Virginia Pilot just a couple of months ago about a experienced criminal defense lawyer who ended up getting convicted of criminal assault because he talked to the police. He was accused of having assaulted another attorney in the hallway. There were no other witnesses to this. A woman said that he grabbed her by the throat during an argument over a case. He denied it. At trial it was his word against hers. He said “I did not even touch her.” But unfortunately for him when the police had approached him earlier and said “would you be willing to answer some questions?”

He said “sure, why not. I’m a – I’m an attorney, I’m a criminal defense attorney, I’m savvy, I’m sophisticated, I’ve got oratorical prowess, I’m- I’m accustomed to dealing with the police, by all means.” And then there was a conversation that was not recorded. When the case went to trial it was no longer his word against hers, because when he testified at trial “I never touched her,” the officer took to the stand and testified “well when I met with him, he said he did put his hand on her throat, but just as a joke.” Then he had to take the stand again and say “that’s not true. I never said that. I never admitted to you that I-” Now it’s his word against two people. Who’s telling the truth? We’ll never know for sure, but he was found guilty.

The Heart of the Problem
* “Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. And these laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are nearly 10,000.”
* Paul Rosenzweig. The Over-Criminalization … Economic Conduct. The Champion 28, 29 (A…

[James Duane:]
Now. Here’s part of the problem. The heart of the problem, as Justice Briar, on the U.S. Supreme Court explained in 1998 is, quote: “The complexity of modern federal criminal law, codified in several thousand sections of the United States Code, and virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know in advance just when a particular set of statements might later appear to a prosecutor to be relevant to some investigation.”

One expert on criminal law recently noted that “estimates of the current size of the body of federal criminal law vary, although it has been reported that the Congressional Research Service can no longer even count the current number of federal crimes.” That’s right, even the federal government has lost count. “These laws are scattered over all fifty pages of the U.S. Code, encompassing roughly twenty thousand pages. Worse yet, these statutes often incorporate by reference to the provisions of administrative regulations. Estimates of how many such regulations exists are even less well settled, although the ABA thinks there may be nearly ten thousand.”

Just One Example
* 16 U.S.C. 3370: “It is unlawful for any person … to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal … law or regulation of any State o… any foreign law.”

[James Duane:]
Here is one of those ten thousand federal criminal statutes on the book, that you probably never heard about. It’s called the Lacy Act. Sixteen U.S.C. section 3370 says “It’s a federal offense for any person to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in the violation of any law, treaty, or regulation of the United States or any Indian tribal law, or any state law or any foreign law.”

People have been convicted in federal court for violating this statute because they brought back a Bony Fish from Honduras, not knowing that Honduran law, not American but Honduran law, forbade the possession of the Bony Fish. People have been convicted under this law because they were found in possession of what’s called a short lobster, a lobster that is under a certain size. Some states forbid you from possessing a lobster if he’s under a certain length. It doesn’t matter if he’s dead or alive. It doesn’t matter if you killed it, or if it died of natural causes. It doesn’t even matter if you acted in self defense. Did you know that? Did you know it could be a federal offense to be in possession of a lobster? Admit it, raise you hand if you did not know that. There’s the problem. And that’s only one of ten thousand different ways.

You know, the government gets pretty upset when people like me instruct the client, people like me and Justice Jackson, don’t talk to the police, don’t answer any questions. But you know they can’t have it both ways. You people, you’ve got ten thousand different ways of convicting us, good for you, but you know with the bitter come with the sweet, with the good comes with the bad, that’s ten thousand different ways my client might unknowingly implicate himself in some sort of a criminal transaction.

One of the reasons I decided to give this talk. I recently received a phone call from a former student of mine. A Regent law school graduate, who may be watching this online, we’re putting it on the Internet. And he told me “hey, I’ve been approached by the Internal Revenue Service. They want to ask me a couple of questions. They asked if I’d be willing to. Uh, but they say that I’m not a suspect, and I know in my heart I don’t I’ve done anything wrong in violation of the Internal Revenue Service provisions.” Lord have mercy.

There’s no man on earth, there’s no woman in this country who can honestly say with complete confidence “I know I have never violated any provisions of the Internal Revenue Code.” He said, “but they say I’m not a suspect, and I know I’ve done nothing wrong. It’s okay if I talk to him?” I said “No. No, you tell them you will not talk to them without immunity.” I explained to him why that was true and they never, he never heard from them again.

Why You Should Never Talk to The Police
The Top Ten Reasons

[James Duane:] Source:
Okay, why you should never talk to the police. Let me just spell it out for you, let me make it plain to all of you. These are the top ten reasons. I don’t want to actually really lie to you. I don’t really have ten, I don’t have time for ten. But I’ve got time for eight, and that’ll be close enough.

Why Not Talk to the Police?
* 1. There is no way it can help.
* You can’t talk your way out of getting arrested.
* You can’t give them any information that will help you at trial. See Federal Rule of Evidence 801(d)(2)(A).
* What you tell the police is only a… is offered against you by the pro…

[James Duane:]
Number one! And this really ought to be good enough. Contrary to what you laymen instinctively and naturally suppose, it, can, not, help. There is no way it can help you. Plenty of folks think that it can and they’re always wrong. You cannot talk you way out of getting arrested. Officer Bruch, you’ve interviewed thousands of criminal suspects.

Have you ever – How many times in your experience, have you approached someone, asked if you could ask them some questions because prior to the interview you had some evidence pointing to his possible guilt. And because of the extraordinary persuasiveness and eloquence with which he articulated his innocence you said “Oh, sorry, never mind. Bad call, my bad, I won’t- and you – he talked you out of arresting him.”

[George Bruch:]
Oh, you know the answer to that.

[James Duane:]
Never. Never, it never happens. I’ve often asked other criminal defense attorneys, “in all of you experience, have you ever once had a case where you looked back in hindsight and said ‘thank God my client talked to the police.’“ They laugh at me. They laugh at me. They say “you’ve got to be kidding me.” It cannot help you. You can’t talk your way out of getting arrested, and contrary to what you might suppose if you never studied the rules of evidence, what you tell the police, even if it’s exculpatory, cannot be used to help you at trial, because it’s what we call hearsay.

Under the rules of evidences, specifically rule 801 (d)(2)(A) if you want to look it up, everything you tell the police, as the saying goes, can and will be used against you but it cannot be used for you. From time to time I’ve know attorneys who’ve tried to call the stand a police officers and say “officer, would you tell the jury what my client told you, because what my client told him was actually good for my case.”

If you try that at trial the prosecutor will object that it’s hearsay, and the judge will agree. The police will not be allowed at you request to tell the jury what your client told him, no matter how good it may be for you case. It cannot help. And that ought to be good enough reason. That ought to be reason enough to keep you mouth shut, but if you’re not persuaded let me go talk about a couple of others.

Why Not Talk to the Police?
* 2. If your client is guilty — and even if he is innocent – he may admit his guilt with no benefit in return.
* What’s the rush?
* In federal court, 86% of all defendants plead guilty at some point before the trial.
* Your statement to the police ma… admissible evidence by the time …

[James Duane:]
Number two, obviously one of the most, obvious. If your client is guilty, as many of them are, but even if he’s not, even if he’s innocent, he may well admit his guilt with no benefit in return. Now of course, many of you are thinking to yourself, “well what’s so wrong about that. I mean shouldn’t guilty people be confessing. Confession’s good for the soul. It’s good for law enforcement. It’s good for the prisons.” Yes. Yeah, sure, all those things are true.

And like the rest of you, if I or anyone close to me is ever the victim of some sort of a serious crime, I hope they get the right guy, I hope they convict him, I hope they put him away. We all feel that way. Hey, but what’s the rush friends? You don’t gotta admit your guilt the first time they come by to meet with you. In federal court eighty per six – 86% of all defendants plead guilty at some point before the trial. If your client is guilty and really ought to [be] punish, and really ought to have a – go through some sort of a cleansing act of contrition, and fess up, and admit his guilt. There’ll be plenty of time to do that, they almost always do. No need to rush, no need to tell the police something.

Wait and see if where – perhaps your client can work out some sort of an arrangement. Where maybe he’ll make some sort of compensation to the alleged victim, or maybe he’ll be able to get some sort of a discount on his sentence. And he’ll be able- he’ll be treated fairly then, like everybody else who had the benefit of a good lawyer who said “please do not talk to the police.”

And don’t forget by the way. Even if- even if your client only admits things that the police already knew. You might think “well what harm could it do. He says he wants to talk to the police. All he wants to do is admit that he was there, but the cops know that he was there. Alright, go ahead and tell them. How can it hurt.” It might hurt, if the police officer becomes transferred to Minnesota, or deceased, or injured, or comatose, or can’t be located by the time of trial, the case will be dismissed if there’s no confession. But if your client admits true things, that confession is freely admissible against him and it can be a bases for getting him convicted all by himself.

Just Ask Him …
(Photo of Senator Larry Craig)

[James Duane:] Source:
Senator Larry Craig can explain all this to you.

Even Innocent People Confess
* The Innocence Project
* “In more than 25% of DNA exoneration cases, Innocent defendants made incriminating statements, delivered outright confessions or pled guilty.”

[James Duane:]
The innocence project of the United States has confirmed, that in more than 25% of all the cases where an innocent convicted and then later released from prison after he was exonerated by DNA evidence, in more than a quarter of those cases, these innocent people, people we know to be innocent, made incriminating statements, delivered outright confessions, or pled guilty. How do they do that? He’ll tell us all about it I trust.

Just ask Them
(Photo of Eddie Joel Loyd) (Photo of Earl Washington)

[James Duane:]
Here’s a couple of famous examples, you can just ask them, you don’t have to take my word for it. They are on the left of us, Eddie Joel Loyd. He was convicted in 1984 for the murder of a 16-year-old girl in Detroit, after he wrote to police with suggestions on how to solve various recent crimes. During several interviews, police fed details of the crime to Mr. Loyd, who was mentally ill, and they lied to him, and convinced this mentally ill man that by confessing he might help them smoke out the real killer.

He later signed a confession, gave a tape recorded statement. The jury deliberated less than one hour before convicting him on the bases of this confession, there was no other substantial evidence against him. The judge said “I’d hang you if I could,” but the death penalty was not available in Michigan at the time. But now – after almost two decades in prison he was released, after DNA evidence proved that this man was innocent, and falsely committed – confessed to a crime that he did not commit.

On the right is Earl Washington, who was released from prison just a few years ago here in Virginia, after spending eighteen years behind bars, for a- after be committed of a rape and a murder that we now know he did not commit, after having been exonerated by DNA evidence. But be this man, Mr. Washington, who was in fact confirmed to be mentally retarded, was able to confess to several crimes at the request of the police, some of which we know he could not have committed. That’s the problem.

Some of you are thinking to yourself, “well none of this concerns me because I’m not guilty of anything and I never will be, and I will never represent people who do.” OK.
Let’s talk to you people, you innocent folks. Those of you who have never committed a crime and never will and none of your clients will either. And no- and you wouldn’t go out with a girl who did. Fine. You better not talk to the police either, Okay. Because number three, we’ll put the guilty behind us, forget about them. Let’s talk about innocent people.

Why Not Talk to the Police
* 3. Even if your client is innocent and denies his guilt and mostly tells the truth, he can easily get carried away and tell some little lie or make some little mistake that will hang him.

[James Duane:]
Number three. Even if your client is innocent, and denies his guilt, and almost entirely tells the truth, odds are good he will easily carried away and tell some little lie or make some little mistake that will hang him. This is human nature. He gets in there, it’s a stressful situation. Imagine a perfectly innocent client. The police say he’s been guilty of a murder. He’s totally innocent, as innocent as any one of us. So he goes in there, he meets with the police, he says “I don’t know what you’re talking about, I- I was nowhere near there. I- I- I didn’t kill him. I’ve never killed anybody.

I don’t have a gun, I’ve never had a gun. I’ve never touched a gun in my life. I was nowhere near Virginia beach that la- that la- that night-” Ah, en en, that last line was a lie. He went over the top. He was getting carried away. He got into this groove, he started say all kinds of things, almost all of them true, that he knew would tend to exculpate himself. Then he got carried away and just said one thing that wasn’t true, and unfortunately for him they can prove that it wasn’t true, he may be convicted on that basis alone.

But let’s say your- let’s say all that’s not a problem. I’ll tell my client only to tell the truth. I- I’ve met with him, I know he won’t lie to the police, he won’t make any mistakes. Okay, that’s still no guarantee he won’t be getting into trouble.

* 4. Even if your client is innocent and only tells the truth, he will always give the police some information that can be used to help convict him

[James Duane:]
Because even if your client is innocent and only tells the truth, and doesn’t say anything that is false. Now already mind you we’re pretty well nigh into fantasy land. This odds of this being- anybody being able to pull this off are really quite slim, no matter how innocent they may be. But just the same- let’s pretend. Let’s assume he gives the police nothing but the truth, and he is totally innocent. He will always give the police some information that can be used to help convict him, always.

What Your Client Told the Police
* “I don’t know what you are talking about. I didn’t kill Jones and I don’t know who did. I wasn’t anywhere near that place. I don’t have a gun, and I have never owned a gun in my life. I don’t even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn’t kill him. I have never … in my life, and I would never do …

[James Duane:]
For example, suppose you tell this to the police. Here’s what you client tells to the police, in his denial of guilt: “I- I don’t know what you are talking about. I wouldn’t- I didn’t kill Jones and I don’t know who did. I wasn’t anywhere near that place. I don’t have a gun, and I have never owned a gun in my life. I don’t even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn’t kill him. I have never hurt anybody in my life, and I would never do such a thing.”

Let’s suppose every word of that is true. One hundred percent of it is true. What will the jury hear at trial? “Officer Bruch, was there anything about this- your interrogation, your interview with the suspect that made you concerned that he might be the right one?” “Yes there was. He confessed to me that he never liked the guy’“

What The Police Will Tell the Jury

[James Duane:]
And then the prosecutor will put that up in big letters. And he’ll say, “ladies and gentlemen of the jury, it’s pretty clear that we’ve got the right guy here. We’ve proven that he was in Virginia Beach that night, that’s opportunity. And remember Officer Bruch admitted that after extended questioning he was finally able to get the defendant to admit that ‘he never liked that guy.’ There’s your motive. Motive plus opportunity. Wham, bam.” Please. But juries eat it up. And innocent people get convicted this way sometimes. How often? Hopefully not too often, but we know it happens.

The Point of the Fifth Amendment
* Ohio v. Reiner, 532 U.S. 17, 20 (2001)
(internal punctuation and citations omitted):
* “One of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the gov… incriminating evidence from the … mouth.”

[James Duane:]
The United States supreme court, don’t take my word for this, in Ohio versus Reiner the supreme court of the United States said, quote: “One of the Fifth Amendment’s basic functions is to protect innocent men, who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” See, it’s not just some criminal defense attorney telling you this, even the Supreme Court says I’m right.

In the fact- under the facts of that case by the way, in Ohio versus Reiner, a child tragically was died, apparently the result of shaken baby syndrome. Question was who had shaken this baby to death. And one of the possible suspects was a babysitter, who had spent some time with the child that week. The babysitter’s story was, “I- I don’t know what your talking about. I did not kill the child. I don see- I did not see it happen. I don’t know who shook the baby. It was never me. I never did anything of any violent nature to the child.”

The Ohio state court said, “well, you’ve got no Fifth Amendment privilege. You- by your own admission told the investigators that you’ve done nothing wrong, that you were not involved, so obviously your answers can’t incriminate you.” The United States Supreme Court reversed and said “well that’s not true. Even though the child- this babysitter denies shaking the child, denies seeing the child die, denying know- denies knowing how the child died.” This babysitter, by her own admission apparently was being- was…

The government wanted to ask whether the babysitter might have been with the child at some point that week, during the week prior to the death. And that answer, although by itself not sufficient to convict anybody, could help convict her. That means she’s got a Fifth Amendment right to refuse to answer the question, the court held. Because it could be used to help convict.

The Point of the Fifth Amendment
* Ullmann v. United States, 350 U.S. 422, 426 (1956):
* “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invo… either guilty of crime or com… claiming the privilege.”

[James Duane:] Source:
Ullmann versus United States, the Supreme Court said, more than fifty years ago, eerily prophetic. They said: “Too many Americans, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” That’s not true and it never has been. But it gets worse. Can it get worse? It can.

Why Not Talk to the Police?
* 5. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating, there is still a grave chance that his answer can be used to crucify him if the police don’t recall h… testimony with 100% acc…

[James Duane:]
Number five. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating which by the way is almost impossible to pull this off. I mean imagine talking to the police for two, three, four hours, and- and somebody like him [George Bruch] can’t somehow manage to extract from you something that can be use to acul- to convict you. That would be extraordinary. I don’t anybody’s pulled it off. But even if you could pull it off. There is still a grave chance that his answer can and will be used to crucify you in a court of law if the police, no offense, don’t recall his testimony with one hundred percent accuracy.

Alright, now this brings us back to that pop quiz I warned you about. I told you earlier, remember. It’s only been a few minutes. And you weren’t up all night. And you weren’t the subject of physical duress. You were in the relaxed setting of a classroom here. You were given heads up, advanced notice that you would be quizzed on this. Question. We’ll start with a couple of easy ones.

Quick Quiz
* How many people did the police find shot to death last night at the Ocean View apartment I told you about?
* A. One
* B. Two
* C. Three
* D. Four

[James Duane:]
Remember that article I read you about that- How many people did the police find shot to death last night at the Ocean View apartment I told you about? A) One, B) Two, C) Three, D) Four. Who says A? B? C? Get this- get that with a camera. Show- get- move that camera around. Look how many hands we got there for C. Okay, D? Your all wrong. Everybody who raised their hand, everybody who raised their hand. You are the kind of people who should never talk to the police under any circumstances for as long as you live. Why is C not the right answer by the way? If you know raise you hand. Yes?

Random Girl:
Because you didn’t state the cause of death.

[James Duane:]
Excellent. I didn’t say anybody was shot. I didn’t say gun, bullet, shooting, firearms, didn’t use any of those words. But I don’t blame you if you thought that I did. This is the way the human mind works. We hear things, we fill in details. I said “gangland style slaying.” That may or may not imply something, but it doesn’t mean that anybody was shot. And that’s the problem.

Why Not Talk to the Police?
* 6. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating and his statement is videotaped, his answers can be used to crucify him if the police don’t recall th… questions with 100% acc…

[James Duane:]
You see, even if your client is innocent and only tells the truth and does not tell them anything incriminating and his statement is videotaped, his answers can be used to crucify him. You might say, “wait, how can that happen? I insisted- at my insistence- I called the police and I said ‘lookit, you want to talk to my client. You can talk to him but only if you videotape the whole thing. I don’t want there to be any debate between the two of you over what happened.’ ‘Okay, we’ll videotape the whole thing.’“ If the police don’t recall their questions with one hundred percent accuracy, he’ll be convicted on that statement alone.

How Could This Hurt?
* “I don’t know who killed Jones. It wasn’t me. I have never touched or fired a gun in my life.”

[James Duane:]
For example. Suppose a man goes to the police. They say “we’re investigating a possible murder, a shooting.” And the guy says, quote: “I don’t know who killed Jones officer Bruch, with all due respect. It wasn’t me. I have never touched or fired a gun in my life.” How can that help incriminate this man? How can that possibly be used against this man, to help convict him? You would think it’s inconceivable, but it’s as easy as pie.

All the officer has to do is read this statement to the jury, and then the prosecutor says, “officer Bruch, was there anything about that statement that confused you or surprised you?” “Yes there was,” he says in a moment of sinister high drama in the courtroom. “And what was that?” And then officer Bruch turns to the jurors and he says, “I never said anything about a shooting. I said we were investigating a murder. He was the one who brought up a gun.” Then you turn to your client, and your client says, “that’s not true, that’s not true. I remember he was the one, or one of the cops, I was with them for three hours, one of them in the car said something about, they said, they had a witness, that I was a shooter.”

OKay, I’ll put you on the stand. And then you client testifies, “No, no, no, they did tell me shooting, I mentioned- they mentioned it before I said anything about a gun. They brought it up first.” And then the police said, “that’s not true.” And now what? It’s your word against their’s? For what? You’re gambling with your client’s life.

And police officers can very easily make a mistake like that, just as so many of you did just a few minutes ago, about whether you recalled having heard me say something about somebody actually being shot. Police make mistakes, innocently, inadvertently, unintentionally, any statement, no matter how exculpatory it may seem on it’s face, can be used to crucify you all by itself. If the police are either willing to lie, not likely, or if they just have a mi- innocent misrecollection of the details as to what they did or did not tell you before you told them what you said. All of these by the way, all of these problems disappear if you take Justice Jackson’s advice and say, “thank you very much officer, but no thanks.”

How about this one? Here we go, now here’s the most surprising of all. I’ve saved the most surprising one for last. Let’s suppose you’ve got the following scenario. Your client’s thinking about talking to the police. He acts like- he says “I’ve got nothing to hide. They think that I killed somebody in Virginia Beach last night.” Well where- and this is what- and this is what you client tells you in confidence: “I don’t know who robbed that store. It wasn’t me. In fact, I got a pretty good alibi. I wasn’t even in Virginia Beach that night, last night; I was four hours away visiting my mother in the Outer Banks.”

How Could This Hurt?
* “I don’t know who robbed that store. It wasn’t me. I wasn’t even in Virginia Beach that night; I was four hours away visiting my mom in the Outer Banks.”

[James Duane:]
“Unfortunately no, I did not pay for gas with a credit card. I used cash and so I’ve got no witnesses that can prove I was there except my word, and of course mama.” For what that’s worth, which is of course nothing. Uh. But, uh, so your client says, “so the police want to talk to me, and I want to seem cooperative so what I’ll do is I’ll tell them I was in the Outer Banks last night.” Now, there’s nothing, on it’s face incriminating about any of that.

Let’s assume by the way, that you believe with all your doubt- you’ve given your client a polygraph exam. You’ve known him for years. You’ve been going to the same bible study for thirty years. You know beyond a shadow of a doubt that he’s telling you the truth. And he’s not admitting anything. He’s not admitting motive. He’s not admitting opportunity. He’s not admitting he was there. Eh, how on earth could this come back to haunt us? How on earth could this come back to be used against us. Be honest, raise your hand if you really think the answer to that question is, “I can’t see how it could possibly be used against me.”… You’re afraid I’ll call on you right? I won’t call on you.

Well you’re wrong, you’re dead wrong, you’re always wrong, everything you say. Every, time, you talk to the police you will regret it. You see the problem is, here it is, this is the last point.

Why Not Talk to the Police?
* 7. Even if you client is innocent and only tells the truth and does not tell the police anything incriminating and the entire interview is videotaped, his answers can still be used to crucify him if the police have any evidence, even mistaken of unreliable evidence that any of his statements are false.

[James Duane:]
Even if you client is innocent and only tells the truth and does not tell the police anything incriminating and the entire interview, questions and answers, are videotaped, your- even his truthful answers can be helped to- used crucify even an innocent man if the police, through no fault of theirs, end up in the possession of any evidence, even mistaken and unreliable evidence that anything your client told them was false, even if in fact it was true. Again, going back to this example from a moment ago. Let’s suppose I tell- I go ahead and I meet with the police. I think I got nothing to hid. I tell them “I was in the Outer Banks last night officer.” How could that be used to convict me? By itself it cannot, it cannot help at all by itself.

But what if I later find out, to my horror, after I put my cards on the table, that they’ve got a witness, a girl that I went to high-school with, an unimpeachable witness, we’ve never been enemies, she’d have no reason to lie. She swears she thinks she saw me in Virginia Beach last night a couple a blocks away from that store, about an hour before it was robbed. Now her testimony by itself isn’t going to help the prosecutor. Hell, if she’s all they got I’ll get this case thrown out before trial. But if like a idiot, I talk to the police, and I told them the truth, I told them I was in the Outer Banks, and now lo and behold, tragically turns out they’ve got a witness. A false, mistaken, confused, but sincere incredible witness, who can testify that I was here in Virginia Beach. Now they’ll likely to get a conviction.

Because what they’ll do- I’ve just turned this cop and this woman into the government’s star witnesses. They’ll put her- hell they’ll put officer Bruch on to testify about how my client lied to him about being in the Outer Banks. And then they’ll put on this girl. This girl who otherwise would have not even helped their case at all, who will testify, “no, that’s not true, that was a lie, I saw Mr. Duane’s client, here, in Virginia, an hour before the robbery, not so from the store.”

By herself she would not have helped the government in any significant way. But what I have just done, you see, is given them the other part of the puzzle, and now I’m doomed.

[Slide 27] Just ask them
(Photo of Martha Stewart) (Photo of Mary Ann Jones)

[James Duane:]
Just ask them. I- I close- I close with this example. Here we have a couple of recent celebrity examples of why it is that even people who admit nothing, always end up denying it- I mean sorry, they always end up regretting it.

On the left we have Martha Stewart. She was the victim- the subject of an extensive government investigation that was looking into the possibility that she was guilty of fed- of violations of certain federal laws, securities laws, fraud kinds of things. They couldn’t pin that on her, but they were able to get a conviction because she denied it. Talking to the police and later to some of the shareholders, she said “no, it’s not true, I was not guilty.” So they charged her with lying to federal investigators, and they got a conviction, and she was sentenced to five months in prison.

Mary Ann Jones, on the right side. Another person who would still be out today if she had always uh, taken the advice that I’m giving you now. She was asked to- if she had ever used steroids, a controlled substance. And instead of taking the fifth she said “no, I never took steroids when I won those Olympic gold medals.” Uh, later on it turned out that she was lying. She worked out a deal, she pled guilty, she admits that she was lying. And she, over her strenuous tear filled objection, even though she has two young children, was just recently sentenced to prison for six months. The guy who sold her the steroids, the pusher, he got only four months. But she got six months because she lied to the police and said that she did not do it. You see the problem.

Michael Vic, who recently pled guilty, as you know, to these charges with respect to the operation of these dog combat sort of operation in his home. At sentencing, like many other criminal defendants, even though he eventually pled guilty at sentencing, one of the reasons his sentence was a little harder then it might have otherwise been, the judge said, was because when he initially met with the police he lied to them and said “I didn’t do anything, I didn’t do it, I don’t know what you’re talking about.”

Even guilty people, but not guilty people, will always end up regretting talking to the police.

Um, uh. So, my advice to you, Justice Jackson was right. Any sane competent lawyer in his right mind will always tell every client under all circumstances, “I don’t care if you’re innocent. I don’t care if it’s the truth. If it’s the truth, great, we’ll tell the jury all about it. There’ll be time enough to put our cards on the table. But before we get there, I haven’t seen yet what the police got. They may have mistaken and confused witnesses who will contradict even the truthful stuff that you say.

We have no way to know. No way to predict whether the information that you give them, even if truthful and reliable, will end up unwittingly spelling- dispelling our demise. So keep your mouth shut, don’t answer any questions, let’s take the fifth, you’ll be glad that you did.” God bless America, God bless the bill of rights, and the geniuses who bequeathed it to us, but inference like now I will give equal time or what’s left of equal time.

To a police officer who I have explained to the extent, which any of you hear agrees or disagrees with anything I’ve got to say, I didn’t – I have no idea to know what he is going to say, but it will be interest. Yeah, let me give him the microphone. Give him – let’s give him a big hand. Officer George Bruch the Virginia Beach Police Department.

The other side of the story…
Officer George Bruch
Virginia Beach Police Department

[George Bruch:]
I cannot talk that fast, not even in an interview, and I am going to take the podium here professor.

[James Duane:]

[George Bruch:] Source:
So I take notes on some of the things you said. And everything he said was true, okay, and it was right and was correct. And I am just going to give you a few ideas. I am going to tell you few examples, but first I’m going to give you a little information.

As was said earlier, I’ve interviewed 1000’s people. I have interviewed people with foreign police departments, when I was in the navy, when I was in law enforcement, and I was a criminal investigator. Thank god we’re in the United States, because most interviews in Italy, Spain, and so forth start out physically, okay? There’s no police [abuse] over there, they can do pretty much what they want, anytime they want, anyhow they want.

So just aware that be thankful for your biggest question I was asked my first I am 3L and there’s some of my classmates in here, best days coming up, May 10th, when we get to leave, so those you that are applying and I told a couple people this – you think it’s hard getting into law school, try getting out, okay.

A couple of things I was asked, how do I quit from getting speeding tickets, very easy question, quite speed, okay. But something Professor Duane brought up; are any of you guilty of anything. How many of you drove here today? Anybody go above 55 on the Interstate, anybody drive at home and go above 55 on the Interstate because if you – if you stay…

[James Duane:]
Why you raise your hands for – I told you don’t —

I know. I know… I did it anyways… I did it intentionally.

[James Duane:]

[George Bruch:]
And there you go. And people are inherently honest and that’s our biggest downfall, okay, they really are or they want to tell their story. And if you drive 55 on the Interstate, where it’s 55, the only thing you’re going to do is meet the person behind you, because they’re going to rear end you and you’re going to get run off, okay. So that’s a fact, but everybody does something that they can get in trouble for. I can follow as a police officer, when I was in uniform, I could follow a car, however long I needed to and eventually they’re going to do something illegal and I can pull them over and justifiably illegal to pull them over.

So just be aware that. Don’t – don’t think you’re so innocent in such a thing.

When you get stop for a traffic ticket, everyone likes to be somewhat honest. And what’s the first thing the police officer asks you, you know, how fast you’re going. If the speed limit is 35, you will say, oh, 38, 40 because you want to be kind honest even though you’re doing 50. You just said 38, 40, you just admitted to breaking the law, you just confessed. So they can go to court with that with a confession that you are exceeding the speed limit, okay.

So you need to think about those things and when you do become defence attorneys, which I may, who knows, you need to think about those things for your clients.

The other thing you need to think about your clients and this is going to seem very terse, people are stupid, your clients are stupid, and I have had defense attorneys come to me as a matter of fact one on a motioned to suppress just Tuesday come up to me to tell me his client was stupid, okay. They are very straightforward. They do foolish things. They talk to the police and you guys – you guys need to be aware of that.

Now, in my past and it wasn’t exaggerated, I have interviewed 1000’s of people. I have arrested and dealt with over 1,000 felonies – well actually more than 1000’s felonies, probably about 20 or – not 1000 felonies, 2,500 misdemeanors, 98% of conviction rate, 80% of might don’t even have to go to court, why, because there is confessions because they confess.

So these people have no problem, the hardened criminals have no problem talking to the police, people like to tell their story, and they will sit in that room and think about it. You’re picked up by the police, you’re in a little room, there is one chair here, there’s a desk, and there is another chair. What’s the thing you want the most, right at that point to get out of that room, to be out of that room.

Think that police officers – police officer’s shift is ending in 15 minutes, does the police officer want to get out of that room, my overtime rates $58 an hour, do I want to get out of that room, I have no problem, I will stay for there ten hours. I will take that $600, okay. So I have no motivation to want to leave, you do, and that’s how we get you to try to talk. I have my job.

My job is to develop probable cause, develop a good case, a great case, is a case with a confession, get it to the Commonwealth’s Attorney, so that they can prosecute the case with a little of any effort and the Commonwealth’s Attorney love those cases with a little of any effort because they came with a stack of files at high in court everyday, so they love those case. That’s my job.

The Defense Attorneys job is to hope they get to their client before I do and make sure they don’t talk to me, no matter what.

I will give you an example and this will go right along with what Professor Duane was putting up in his examples, I had interviewed the one something like this. Were you involved in the burglaries, no, I’d nothing to do with them. You don’t have anything to do with them? No. You’re in a car with all the stolen stuff in it. You’d nothing to do with them. No. You know what was there. Yeah.

Okay, now we’ve got possessions stolen property felony, okay. But you’d nothing to do with them. No. So what did you need the money for? Well, I had to pay some of my court costs from another thing I’ve got in trouble for. Oh, he took the money from stealing the stuff. I have enough to charge him now with burglary, simple is that. Well, just see the picture on that camera, the house with the Christmas decorations; this is a real case scenario. Yeah, did you go in that house, no I didn’t go into that one.

So, there is ways around it. There is ways to get around people who try not to talk to you and again as Professor Duane said if you wanted to go and say you wanted to go into a boxing match, $100 if you win, you’d never boxed before. You have to face somebody who is an Olympic boxer. You’re going to lose. You’re going to face somebody who has been interviewing people for in my case 28 years, you’re going to lose, unless you’re purely innocent.

Now, on the other side of it, I don’t want to put anyone that’s innocent in jail, but I try not to bring anyone into the interview room that’s innocent and there are a couple that I have let walk away because they were innocent.

Okay, the interviews; how do we approach the interviews? There is a number of ways to approach interview. There is a number type of people that I deal with. First thing I do, anyone know what they get told first when they’re in an interview…


[George Bruch:] Source:
Miranda warning, okay, it’s not a right, you don’t have the right to Miranda. Those rights have always been there that’s called the constitution, you’re just teaching, you’re doing a real quick class on the constitution for these people, usually they don’t listen to it and this is the way I will give my Miranda warning. Look I have to tell you this, just pay attention. Okay, and they’re usually sitting back or they’re very attentive. You have the right to remain silent. Do you understand that? Yes. Anything you say, maybe used against you in a court, I don’t have to say it will be, I say it may be, okay and they get that. You have a right to an attorney and if you can afford one, one maybe appointed to represent you. You got that?

You can decide not to talk, quit talking to me at anytime and exercise these right, do you understand that. Sure.

Now before I do the primary thing that’s needed with those rights and that’s to get a waiver, I say, now. Before you say anything let me tell you what I know. And overall the time I have had to put together what this individual was supposedly involved in and I always say supposedly because Professor Duane is sitting over there that this individual was involved in. I will tell this story that I have put together and it will be pretty close to what happened.

And I can see that it’s pretty close to what happened because that individual starts slumping down from their chair or they will put their hand to their face, doing this in their mind, oh my god and I am going to jail forever, okay. And I can see it and I said now that you know what I know, do you want to talk to me. And why do I do that because if I didn’t do that as, if I said do you want to talk to me they will say no, so I give them a time to think about and then comes the next phrase.

Now, before you start talking to me, let me tell you the difference between a lie and a truth. If you lie to me and I get before the judge and I tell the judge if you’re dishonest with me that’s just not going to make him happy. But if I get before the judge and tell them you’re honest, straight forward, willing to take responsibility for your actions that is going to help you. That’s a lie though that is true in Virginia Beach Courts it will help them. You know.

They not get five years, they may get three years, they’re still going to prison, or they’re still going to have a felony, but it will help them. And then I have to determine what kind of person I have and there is two types. There is one like I mentioned to you earlier or I have to talk to them, talk to them about different things, get into their own skin as a word is; and try and get them to talk to me and discuss things. I had a sexual assault case.

I had to talk to the guy how hot the woman was and I understand where he was coming from. And when that – and when I said that we were buds and he started talking to me and he’s stilling sitting in prison, okay. So you’ve got to get in there and go places.

The other side is I can’t try and act like that individual acts, okay. I can’t try and act like what we can lovingly a hoodrat, I can’t try and act and talk like him because I am an older white guy. We don’t talk like that and that would be an insult and you can’t insult people, it doesn’t matter who they are, it doesn’t matter where they grew up, it doesn’t matter where they’re from, you can’t insult people like that. You have to be yourself. So you have to get into their mindset in the way they were thinking and have a discussion with them.

The other type of person is the one that who likes to tell a story. This young man, great man, I love him to death, he didn’t go to jail because I went to bat for him because I felt sorry for him, he’s newly a wed, he’s had money problems, Former Marine.

I said tell me what happened. And he told me this beautiful story about what happened.

What he had done is he had sold a piece of equipment that his ex-employer had had that he had stolen. He told me the beautiful story of what happened about him, finding it on the side of the road, and all that kind stuff. I didn’t even question about him, after he finished his whole story, very implausible but a very beautiful story, I sat there and listened to it for 15 minutes. And I looked at him and said you stole the stuff from your boss? Didn’t you? ‘Yes sir, I did’. I had nothing. I really had noting except the fact that he had stolen. So those are types of people.

And then the third type, the one who tries to be hood, who tries to be the criminal, who cries like a baby when they walk in a jail, but they are on the street, they’re tough as rocks. If you go on there with your paperwork, you sit down and you just start doing paperwork. And usually I have a video tape sitting on top of it just for measure, so they think I have a video tape. And you just sit there, don’t tell them Miranda, just sit there and wait for them to start talking because they will, they want to talk, people want to communicate, they hate silence and that’s why when people speak you hear ah, hmm, when they’re talking because they need to fill that void with something, people hate silence. So that’s the other one. So that’s another way.

So you see how there is an unlevel playing field here even with the most educated individual, there is an unlevel playing field. If you talk to the police everything is going to be written down. If you get pulled over for – for a ticket, they give you the ticket and you pull off, and you ever see the cop pull off right after you, usually not, that’s because on the back of their ticket, they’re writing down everything you said and it’s going to come into court if you go to court.

Everything that’s said I write down, every phone call I make has to have a listening device on it. Is that illegal? How many parties need to know that a phone conversation of Virginia is being recorded? One, me, I knew it was recorded. I get many confessions over the phone.

Okay, back to the people, yes they are stupid, okay. People are stupid. I had a young man, who told me straight up I am going to college, I am going to law school. I am too smart, you will never find out what happened, okay.

He was going to Tidewater Community College, the law school of law I suppose, Tidewater Community College. He was the partner to the one who I told you the interview about just a little while ago where, I would ask him what he needed money for, he was just the partner and he was very smart. So he thought, he thought he was a very intelligent individual. I arrested him five times out of his house, his mother hated me. She liked me the first time, she apologized. She didn’t liked me much the second time, and you got the point where she really hated me after that.

He is doing eight years upstate. He is very smart because he decided to tell me how smart he was. And in telling me how smart he was, he let it slip that he doesn’t sell stolen stuff to pawn shops. He sells it to flee markets because they do not have to report to the state. I know how to drive to a flee market just as good as anyone else and go and look for stuff that I am looking for. So he was trying to impress me with his ability to be smarter than I was and he confessed.

[George Bruch:] Source:
So people are inherently stupid especially criminals now and don’t get me wrong, there are some very intelligent criminals out there and most of them work in really big office buildings in court suits. Yep, she went to jail, is she hurting, no, uh… but there are some very intelligent street criminals out there, they get out and be do their bidding and so forth and so on and people are afraid to turn on them, but there are some very foolish people.

Just a couple of other things, I do a thing usually with younger people usually between the age of I try not to deal too much with you in those, but between the age of 16 and 25, as once they’ve talked to me, now let’s back up a little bit, you don’t need a recording in a court for a statement. As Professor Duane said as his word against my word if he was defending.

Number one and this is the way it works and this is the way the real world works, okay, as you guys haven’t been out there that’s outside the windows out there.

The jury looks at a defendant sitting next to a defense attorney, that’s strike one, because the jury is already looking at that person as being someone who did something that put them in that chair. Number two, they get a uniformed police officer up there. They get someone wearing a suit as a detective up there that is a professional witness. That’s strike two.

So, now they have a professional witness against them. And then, if they’ve confessed, and that professional witness is going to sit there and read from his or her notes the confession, that’s strike three.

Go get your orange jump suit. Do not pass “Go”. Do not collect $200.

So, they have all this strikes against them. And I know you’re innocent until proven guilty, but it’s a jury of your peers. And the perception is if you’re sitting next to a defense attorney, you have to prove you’re innocent. And that’s just the perception of a lot of the jury. No matter how many jury instructions they get, they still perceive that person as a hoodlum, is a criminal. And no matter how hard some defense attorneys try to put their clients in suits and have them sit up at the table, if the trial is a long trial, they fall back to their old ways and they start acting and speaking in a way that’s not very good for their case.

So saying that: you don’t have to have a recording. My suppression hearing a statement was trying to be suppressed because when I record a confession on a interview because we don’t do interrogations, the police, we do not interrogations that’s a bad mean, Nazi kind of word, okay. We do interview, okay. You’d be amazed how much difference it makes, when you use that one, one word vices and interrogation. I will take it off the tape and I will have my secretary, put it to paper.

Immediately afterwards I will take that tape and I will scan it over my magnet through it in my box, so I can use it again. I do not keep the tape, it is not evidence, and it’s not required to be evidence. It is there, if it is there for the court, it’s just extra. You don’t have to have that, but it’s really good to have.

The suppression hearing he tried to suppress that after I testified, the defense counsel stood up and says ‘well judge I really don’t have anything to say’ and Judge Canada said ‘motion denied’ and let’s move on to go to court.

So you don’t have to have a recordings. You don’t have to have video tapes, the police video tapes that’s just extra. If you have got that police officer sitting there testifying, you don’t have to have that video tape. You’ve got the guy that was right there to tell you what happen, but it’s always nice to have those extra things. And what I do for these young is I will say look, the person who you broke into their house are very upset, they’re very angry because you stole their stuff to the pawn shop. Pawn shop stuff sold them, they don’t get their stuff back. They are very angry. They want you to go to prison, okay.

They maybe very angry. They want you to go to prison. They may want to. To lesson that that’s a start of what’s commonly known as a lie because we are allowed to lie in an interviews. To lessen that you might want to make them happy and the reason that’s a lie is because when it is a felony of Commonwealth of Virginia, the victim has nothing to do with the prosecution or how long the people go to prison or any of that kind of stuff. We’re prosecuting them, not the victim. But to lessen that; what I like you to do is write an apology letter to the person whose house you broke into. Just write it out, ‘well how do I write it’, in your own words, just write, you know, I am sorry for what I did, then say that when I broke into your house, the other night, whatever.

They write it out, they sign I, I sign as a witness, I put the date and the time that it was written, I give to the Commonwealth’s Attorney – its entered as confession in the person’s own handwriting, I don’t type it up again and have him sign it, in their handwriting a written confession. Is that person going to get convicted, I have never seen them not get convicted on that on an apology letter.

[George Bruch:] Source: L Y B I O . N E T
So in support of Professor Duane, everything he says is right, that’s what I do.

Now, to takeaway the support I don’t try to send innocent people to jail. That’s it. That’s all I have. Any questions or anything like that? Sir.


Don't Talk To The Police

Don’t Talk To The Police

Regent Law Don’t Talk To The Police. So keep your mouth shut, don’t answer any questions. Complete Full Transcript, Dialogue, Remarks, Saying, Quotes, Words And Text.

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