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You are a citizen of the United States.
That might seem like an obvious and unnecessary statement, but it’s surprising how many of our clients seem to forget that important fact once they find themselves being questioned by the police.
As Americans, we have the right to have an attorney present if we are questioned by any branch of law enforcement, with no exceptions. And if you ever find yourself in police custody, you should not only think of legal counsel as a right, but also a necessity.
There are a few very good reasons to think this way. Police officers and detectives in many city in the country are judged by what is called a clearance rate. These are the numbers on which their careers are based, and they are VERY important. If a detective has a high percentage of “closed” cases (or cases which lead to court cases,) then his or her career is considered successful. Promotions and elevation through the ranks are the reward for those with high clearance rates.
Similarly, prosecutors that work for the state are judged on their rate of successful cases. In their case, success is determined by the amount of convictions that they obtain. Prosecutors with high conviction rates have been known to later get high paying positions at big law firms, or even get elected to public office.
On the other hand, if you are a detective with a poor clearance rate, or a prosecutor with a bad conviction rate, then the future isn’t nearly as bright. Detectives find themselves slipping down through the ranks, and prosecutors end up having to handle minor and unimportant cases.
The pressure to perform among officers of the criminal justice system is very real, and if the police have it in their heads that the person in their custody is guilty of a crime, they will do whatever they can short of violence to get this individual to confess. And if they can’t get this person to confess, they will at least try to get him or her to say something incriminating. Having incriminating statements from a suspect increases the probability of moving the case on to trial.
Having an attorney in the room changes all of that. A citizen with legal counsel present has someone that is there to protect them from answering loaded questions, or making a bad situation worse. No matter how aggressive the questioning might be, it’s important to remember that YOU ARE NOT ON TRIAL. You are simply being questioned by those that wish you were.
In order to underscore the importance of having an attorney, we thought we should give you some examples of the typical tactics that police detectives use to get their suspects to either confess or incriminate themselves. It is our hope that reading about their methods will help you understand why you should ALWAYS have an attorney present, and what you can expect if you don’t.
“Why do you want a lawyer? Only guilty people ask for lawyers.”
This particular line is used fairly quickly in the questioning process, and if it works it helps the police in quite a few ways. The primary reason is to keep the suspect from getting legal counsel. If a lawyer comes to represent the suspect, the interview is effectively over, and the job of the detectives has become that much harder. By equating legal counsel with guilt, the detectives are trying to convince the suspect that it will look better if he shows that he has nothing to hide. It’s very easy to hear that only guilty people need lawyers and to then assume that asking for one would only make you look guilty.
It’s important to understand one simple fact: They already think you’re guilty, and thought so the moment that they brought you in for questioning. Having an attorney present simply makes them have to prove it without talking to you.
When the police tell you that only guilty people ask for lawyers, you should remind yourself that smart and sensible people do the same thing.
“Let’s go over this one more time…”
It is standard operating procedure for detectives to ask you to repeat your story several times. They do this even though the detective has a tape recorder running right in front of you, and could simply press the rewind button if they wanted to hear it again. This process is called “circling,” and they do it for a very good reason. They want to catch you changing your story.
To see how effective this is, try to remember everything that you did last Saturday from 2:30 in the afternoon until 6:45 in the evening. It isn’t very easy, is it? Now imagine if someone put you in handcuffs and took you to the police station, and then made you wait for two hours in a windowless room, and THEN not only asked you what you did on Saturday from 2:30 to 6:45, but also implied that if they didn’t like the answer you were going to go to prison.
It’s difficult for most people to remember how they spent a day under the best of circumstances. Trying it when you are under stress and handcuffed to a table is practically impossible. And repeating the story over and over with any consistency is simply not going to happen.
Since you can’t do the impossible, don’t even try. Your best bet is to say nothing until a lawyer arrives. An attorney will make sure that you only have to tell your story once.
“We have a witness that says it was you.”
Really? Who was the witness? Where did the witness see you? When did the witness see you? Did the witness see YOU or someone that looks like you? What was the witness doing when he saw you? Was he leaving a club? Did he see you or did he THINK he saw you?
These are questions that are just as important as those that are being directed towards you, but the detectives will not be sharing any of the answers. It could be that the witness was elderly, or didn’t have his glasses on, or saw someone with similar features. Perhaps the witness had been drinking. Perhaps the witness saw something through the window of a moving car. As a matter of fact, this witness might have no credibility whatsoever, and the police might know that. But the credibility of the witness isn’t nearly as important as you knowing that a witness exists. Knowing that the police have someone that could incriminate you could cause you to incriminate yourself, and that is exactly what the police are hoping for.
If the police tell you they have a witness, keep your cool, don’t panic, and say nothing until your lawyer arrives.
“We have (hair/blood/semen/fingerprints.)”
CSI is the best thing that could have happened to law enforcement. Every week, millions of television viewers are shown the adventures of a group of forensic investigators. Using hi-tech, multi-million dollar scientific equipment, our heroes meticulously comb crime scenes and uncover the most miniscule pieces of evidence. The hour long episode inevitably ends with one of the investigators holding up a test tube or q-tip and exclaiming “Gotcha!” or some variation thereof. The detectives then present this irrefutable scientific evidence to the suspect, who immediately caves in and confesses his guilt.
Real life doesn’t work like that, and neither do real forensic investigations.
In the first place, most real police departments don’t have the budget to afford these miraculous devices that you see on television every week. Nor do real police have the personnel to get the nearly instantaneous results that are needed to keep the show entertaining.
Real forensic investigators are overworked, underpaid, and working on equipment that has a fifty/fifty chance of producing accurate results. You should also keep in mind that the average police lab technician has a backlog of cases, which means that it can take weeks for them to get to the case that involves you.
You should bear all of this in mind when the detective tells you they have “evidence.” Variations on that are “We have hairs. It doesn’t look good for you,” or “There were prints all over the place.”
Always remember, there is a difference between being questioned in a police station and being put on trial. A police officer on the witness stand in court is under a legal obligation to tell the truth, but he is under no such obligations at the police station. If a detective tells you that he has physical evidence from a crime that happened that night, it’s probably true. But that doesn’t meant the detective knows what the evidence means. The results probably won’t be available for days. Nor does it mean that the evidence that they have will incriminate you. Once again, the job of the detective is to either get you to confess or incriminate yourself further. Telling you that there is evidence is a way for the police to imply that the evidence is against you. Many innocent people have been sent to trial because they panicked and started changing their story. You can avoid this by keeping a level head, saying nothing, and asking for a lawyer.
“We have your (girlfriend/brother/cousin/best friend) in the next room. He’s saying it was you.”
This line is used often and to great effect. Nothing sets off panic, anger and resentment more effectively than telling a suspect that someone he knows and trusts is lying to the police. Suspects hear this when they get taken into custody in groups.
There are two things to remember when you hear this. The first thing is that, again, an interview room is not a court of law. The interviewing detectives are not under any obligation to tell you the whole truth while they are questioning you. If there is a trial, the only thing that the detective will say is that he learned certain facts “during questioning.” He will not say that he cajoled, tricked and swindled you into admitting certain things. With that in mind, it could be that your friend or brother in the next room has said nothing, or, like you, doesn’t even know why he is there.
The second thing to keep in mind is that if someone you know has said something against you, talking to the detectives about what was said will most certainly make your situation worse.
“Look, I’m trying to help you. If you don’t tell me what we need to know, then it’s going to go very badly for you.”
This is called “the out.” It generally comes after hours and hours of questioning. After they have circled and told you about witnesses and evidence and your friends selling you out. You are exhausted. You are scared. Even though you know you didn’t do it, they have presented such a mountain of evidence against you that you actually start to think that you’re going to prison.
That is exactly what they want you to think. They have spent the whole evening asking you to remember impossible details, presenting conjecture and speculation as fact, and convincing you that evidence and witnesses that you haven’t seen are all against you. Why wouldn’t you think you’re going to jail? It all sounds pretty bad.
This is when the good cop comes in. This isn’t the one that has been yelling at you and telling you all these horrible things. This is the one who brought you coffee and a candy bar. He comes in after the yelling and the screaming, and he tells you that if you cooperate, he can see to it that you won’t go to prison for very long. He’ll tell the prosecutor and the judge and everyone that will listen that when it really mattered, you confessed. You felt bad about what you did, and you did the right thing.
If the detectives have done their jobs right, they will have taken all hope from you. They will have run you through this carefully scripted scenario and will have left you convinced that you have no choice. So you start to consider this absurd offer that they have made. You think, “If I HAVE to go to prison, less time is better than more. Maybe if I just tell them what they want to hear then I’ll be out in five years instead of twenty.”
So, knowing that you are an innocent man, you sign the confession that THEY have typed out for you, and you damn yourself.
How would you feel about it if you found out that the evidence was faulty? Or that the witness had been drinking? Or that your friends didn’t say anything? Or that the good detective’s promise of a light sentence was worthless? How would you feel about spending the foreseeable future in prison knowing that your conviction was based on smoke and mirrors? On speculation, yelling, and thin air?
None of these tactics are made up. All of them have been and will be used on perfectly innocent people that were simply in the wrong place at the wrong time.
Asking for a lawyer DOES NOT MAKE YOU GUILTY. Nor will a Judge “get angry” if you ask for a trial by jury. Being accused of a crime can be a terrifying experience, and manipulative interrogations don’t make it any easier.
The attorneys at Brunnock and Fleming bring crucial courtroom experience to the cases of all of their clients. All of our criminal defense attorneys have prior experience as prosecuting attorneys. Thanks to this experience, they know the tactics and methods that prosecutors use, and they know exactly how to build a successful case for the defense. If you or a loved one is facing a criminal charge, or a charge in a New Jersey municipal court, contact our offices for a free legal consultation today.
Brunnock & Fleming, P.C.
1776 On The Green
67 Park Place
5th Floor
Morristown, NJ 07960
Phone: (973) 898-3700
Fax: (973) 898-6766
Toll Free: (800) 378-6206