Don_t_Talk_to_the_Police
00:00:00.000 | I was invited to give you a taste of a typical law school classroom experience here today,
00:00:05.840 | and I thought I would take advantage of this opportunity to do something that's been on
00:00:08.800 | my mind for a while.
00:00:10.320 | To stand up and to proudly say, "God bless America.
00:00:12.880 | God bless the Bill of Rights, and thank God for the Fifth Amendment."
00:00:15.840 | I'm not ashamed to say I'm proud of the Fifth Amendment, and I'm proud to admit on camera
00:00:20.240 | and on the Internet that I will never talk to any police officer under any circumstances,
00:00:24.000 | with all due respect, sir.
00:00:27.120 | I'm doing something really extraordinary here today, something you'll almost never see another
00:00:30.480 | law professor do as long as you live.
00:00:32.480 | I'm really putting myself on the spot here.
00:00:34.880 | This was my idea.
00:00:35.880 | By my invitation, I have given up half of my time, approximately.
00:00:38.800 | I'm giving equal time and the last word to an expert who really knows something about
00:00:42.560 | what I'll be talking about.
00:00:43.560 | So I'm opening myself up to the possibility that he will contradict me.
00:00:47.000 | I was a criminal defense attorney when I was in private practice, so I want to make sure,
00:00:50.280 | in fairness to you, if I'm misleading you or giving you a slanted or one-sided presentation,
00:00:54.480 | you'll be able to get the last word from somebody else.
00:00:56.720 | I'm sure he'll have a lot to teach all of us, including myself.
00:00:59.840 | The Fifth Amendment to the United States Constitution provides, "No person shall be compelled in
00:01:03.840 | any criminal case to be a witness against himself."
00:01:07.200 | And this unfortunate amendment has gotten a bad rap in recent times, much of it tragically
00:01:12.280 | and unnecessarily through, as you may have heard, the headlines.
00:01:17.280 | Let me read to you something that was taken out of the newspaper this morning, and I want
00:01:20.360 | you to listen to it closely.
00:01:21.360 | And I'm giving you a heads up.
00:01:22.360 | I'm warning you in advance, which is not fair to you.
00:01:25.000 | Not fair to me, but I'm giving you a warning that I'll be quizzing you on this in just
00:01:28.600 | a few minutes.
00:01:30.160 | This will test your aptitude for legal study and legal practice.
00:01:32.720 | Listen closely.
00:01:33.720 | It won't take long.
00:01:34.920 | Last night, agents of the Norfolk Police Department found three victims of an apparent murder
00:01:39.120 | dead in an apartment in the East Ocean View area, the apparent victims of a gangland-style
00:01:43.360 | slaying and possibly the victims of gang-related violence.
00:01:46.960 | The police are investigating this as a possible murder and suicide, but right now suspect
00:01:50.960 | that the three were all killed by the same individual.
00:01:53.440 | No suspects have yet been identified in the slaying, but veteran police detective George
00:01:57.080 | Brooke has confirmed that police are following up on evidence pointing to the possible involvement
00:02:01.520 | of an off-duty naval officer as the perpetrator.
00:02:04.480 | The bodies, which were found by the apartment manager at about 8 o'clock in the morning,
00:02:07.960 | appear to have been slain sometime earlier in the same evening, probably sometime between
00:02:11.560 | midnight and 2 o'clock in the morning.
00:02:13.520 | That's it.
00:02:15.360 | Those are all the facts I'll ask you to remember, and it won't be for very long either.
00:02:18.320 | Let's see how well you do.
00:02:19.320 | I'll be quizzing you in just a few minutes.
00:02:21.000 | Now, here's the easiest question.
00:02:23.420 | You'll ever get from a client in all the days of your life.
00:02:26.160 | Question, "Hey, the police are here.
00:02:28.160 | They want to talk to me.
00:02:29.680 | What should I do?"
00:02:30.680 | Well, I could give you my answer to that question in case you haven't already guessed it, but
00:02:33.720 | why don't we go to a real expert, Justice Robert Jackson, a prosecutor's prosecutor.
00:02:38.920 | Like me, he began his private practice in Buffalo, New York years before I did, and
00:02:42.520 | after that he served as general counsel for the Bureau of Internal Revenue, the U.S. Department
00:02:46.200 | of Treasury, the Security and Exchange Commission, assistant U.S. attorney general for the tax
00:02:50.040 | division, later the solicitor general and the attorney general of the United States,
00:02:53.660 | and then the chief U.S. prosecutor for the Nuremberg trials.
00:02:56.740 | That's an impressive resume.
00:02:58.600 | Years later, when he was a justice on the Supreme Court, Justice Jackson stated, "Any
00:03:02.740 | lawyer worth his salt," today we would say his or her, "will tell the suspect, his client,
00:03:08.900 | in no uncertain terms to make no statement to the police under any circumstances."
00:03:13.260 | There's the title of my talk.
00:03:14.420 | I'm here to explain to you the surprising and somewhat counterintuitive and admittedly
00:03:18.140 | unlikely reasons why Justice Jackson was right.
00:03:22.020 | I'm reminded of this because I'm amazed, we're all amazed, by the frequency with which we
00:03:25.620 | see newspaper articles coming out all the time from people who really ought to know
00:03:29.320 | better who say, "Well, I'll talk to the police.
00:03:31.220 | I mean, after all, I'm a senator.
00:03:33.500 | I'm O.J. Simpson.
00:03:36.100 | I'm an experienced, highly polished individual.
00:03:37.940 | I've got a lot of experience with public relations, even criminal defense attorneys."
00:03:41.260 | There was a local news story here in the Virginia Pilot just a couple of months ago about an
00:03:46.020 | experienced criminal defense lawyer who ended up getting convicted of criminal assault because
00:03:50.380 | he talked to the police.
00:03:51.880 | He was accused of having assaulted another attorney in the hallway.
00:03:55.060 | There were no other witnesses to this.
00:03:56.140 | A woman said that he grabbed her by the throat during an argument over a case.
00:03:59.460 | He denied it.
00:04:00.460 | At trial, it was his word against hers.
00:04:02.420 | He said, "I did not even touch her."
00:04:04.920 | But unfortunately for him, when the police had approached him earlier and said, "Would
00:04:07.620 | you be willing to answer some questions?"
00:04:09.020 | He said, "Sure, why not?
00:04:10.700 | I'm an attorney.
00:04:11.700 | I'm a criminal defense attorney.
00:04:12.700 | I'm savvy.
00:04:13.700 | I'm sophisticated.
00:04:14.700 | I've got oratorical prowess.
00:04:15.700 | I'm accustomed to dealing with the police by all means."
00:04:18.060 | And then there was a conversation that was not recorded.
00:04:20.200 | When the case went to trial, it was no longer his word against hers because when he testified
00:04:24.020 | at trial, "I never touched her," the officer took to the stand and testified, "Well, when
00:04:27.540 | I met with him, he said he did put his hand on her throat, but just as a joke."
00:04:31.500 | Then he had to take the stand again and say, "That's not true.
00:04:33.300 | I never said that.
00:04:34.300 | I never admitted to you that I..."
00:04:35.300 | Now it's his word against two people.
00:04:36.740 | Who's telling the truth?
00:04:37.740 | We'll never know for sure, but he was found guilty.
00:04:40.900 | Now here's part of the problem.
00:04:43.800 | The heart of the problem, as Justice Breyer on the U.S. Supreme Court explained in 1998,
00:04:47.580 | is, "The complexity of modern federal criminal law codified in several thousand sections
00:04:52.160 | of the United States Code and the virtually infinite variety of factual circumstances
00:04:56.400 | that might trigger an investigation into a possible violation of the law make it difficult
00:05:00.180 | for anyone to know in advance just when a particular set of statements might later appear
00:05:05.660 | to a prosecutor to be relevant to some investigation."
00:05:09.920 | One expert on criminal law recently noted that estimates of the current size of the
00:05:13.540 | body of federal criminal law vary, although it has been reported that the Congressional
00:05:16.980 | Research Service can no longer even count the current number of federal crimes.
00:05:20.940 | That's right.
00:05:21.940 | Even the federal government has lost count.
00:05:23.280 | These laws are scattered over all 50 pages of the U.S. Code, encompassing roughly 27,000
00:05:27.580 | pages.
00:05:28.580 | Worse yet, these statutes often incorporate by reference the provisions of administrative
00:05:32.820 | regulations.
00:05:34.060 | Estimates of how many such regulations exist are even less well settled, although the ABA
00:05:38.180 | thinks there may be nearly 10,000.
00:05:40.340 | Here's one of those 10,000 federal criminal statutes on the book that you probably never
00:05:44.140 | heard about.
00:05:45.140 | It's called the Lacey Act, 16 U.S.C. section 3370.
00:05:47.900 | Says it's a federal offense for any person to import, export, transport, sell, receive,
00:05:52.540 | acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or
00:05:58.380 | sold in the violation of any law, treaty, or regulation of the United States or any
00:06:03.740 | Indian tribal law or any state or any foreign law.
00:06:07.700 | People have been convicted in federal court for violating this statute because they brought
00:06:10.300 | back a bony fish from Honduras, not knowing that Honduran law, not American, but Honduran
00:06:14.340 | law forbade the possession of the bony fish.
00:06:16.620 | People have been convicted under the List Law because they were found in possession
00:06:19.180 | of what's called a short lobster, a lobster that's under a certain size.
00:06:22.940 | Some states forbid you from possessing a lobster if he's under a certain length.
00:06:25.780 | It doesn't matter if he's dead or alive.
00:06:27.080 | It doesn't matter if you killed it or if he died of natural causes.
00:06:29.360 | It doesn't even matter if you acted in self-defense.
00:06:31.780 | Did you know that?
00:06:32.780 | Did you know it can be a federal offense to be in possession of a lobster?
00:06:35.540 | Admit it.
00:06:36.540 | You did not know that.
00:06:37.740 | There's the problem.
00:06:38.740 | And that's only one of 10,000 different ways.
00:06:41.620 | You know, the government gets pretty upset when people like me instructs the client,
00:06:44.780 | people like me and Justice Jackson, "Don't talk to the police.
00:06:47.580 | Don't answer any questions."
00:06:48.580 | But you know, they can't have it both ways.
00:06:49.980 | You people, you've got 10,000 different ways of convicting us.
00:06:53.500 | Good for you, but you know, where the bitter comes to the sweet, where the good comes to
00:06:56.580 | the bad, that's 10,000 different ways my client might unknowingly implicate himself in some
00:06:59.980 | sort of a criminal transaction.
00:07:01.700 | One of the reasons I decided to give this talk, I recently received a phone call from
00:07:04.340 | a former student of mine, a regional law school graduate, who may be watching this online.
00:07:08.140 | We're putting it on the internet.
00:07:09.600 | And he told me, "Hey, I've been approached by the Internal Revenue Service.
00:07:12.220 | They want to ask me a couple of questions.
00:07:13.500 | They ask if I'd be willing to.
00:07:15.560 | But they say that I'm not a suspect.
00:07:16.700 | And I know in my heart I don't think I've done anything wrong in violation of the Internal
00:07:19.700 | Revenue Service provisions."
00:07:20.700 | Lord have mercy.
00:07:23.940 | There's no man on earth, there's no woman in this country who can honestly say with
00:07:26.980 | complete confidence, "I know I have never violated any provision of the Internal Revenue
00:07:29.820 | Code."
00:07:30.820 | He said, "But they say I'm not a suspect and I know I've done nothing wrong.
00:07:33.380 | Is it okay if I talk to him?"
00:07:34.660 | I said, "No, no.
00:07:35.800 | You tell them you will not talk to them without immunity."
00:07:39.100 | I explained to him why that was true and he never heard from them again.
00:07:42.860 | Okay, why you should never talk to the police.
00:07:45.060 | Let me just spell it out for you.
00:07:46.060 | Let me make it plain to all of you.
00:07:47.420 | These are the top ten reasons.
00:07:48.980 | I don't want to actually really lie to you.
00:07:50.180 | I don't really have ten.
00:07:51.180 | I don't have time for ten.
00:07:52.180 | But I've got time for eight and that'll be close enough.
00:07:54.900 | Number one, and this really ought to be good enough.
00:07:56.980 | Contrary to what you laymen instinctively and naturally suppose, it cannot help.
00:08:01.840 | There is no way it can help you.
00:08:03.300 | Plenty of folks think that it can and they're always wrong.
00:08:05.700 | You cannot talk your way out of getting arrested.
00:08:07.660 | Officer Brooke, you've interviewed thousands of criminal suspects.
00:08:10.380 | Have you ever, how many times in your experience have you approached someone, asked if you
00:08:13.460 | could ask them some questions because prior to the interview you had some evidence pointing
00:08:16.660 | to his possible guilt?
00:08:17.660 | And because of the extraordinary persuasiveness and eloquence with which he articulated his
00:08:21.740 | innocence, you said, "Oh, sorry.
00:08:23.460 | Never mind.
00:08:24.460 | Bad call.
00:08:25.460 | My bad.
00:08:26.460 | I won't."
00:08:27.460 | And he talked you out of arresting him.
00:08:28.460 | >>How do you know the answer to that?
00:08:29.460 | >>Never.
00:08:30.460 | Never.
00:08:31.460 | Never.
00:08:32.460 | Never.
00:08:33.460 | You know, all of you criminal defense attorneys, in all of your experience, have you ever once
00:08:34.460 | hit a case where you looked back in hindsight and said, "Thank God my client talked to the
00:08:37.060 | police.
00:08:38.060 | They laugh at me.
00:08:39.060 | They laugh at me.
00:08:40.060 | They say, 'You've got to be kidding me.'"
00:08:41.060 | It cannot help you.
00:08:42.060 | You can't talk your way out of getting arrested.
00:08:43.060 | And contrary to what you might suppose if you never studied the rules of evidence, what
00:08:46.060 | you tell the police, even if it's exculpatory, cannot be used to help you at trial because
00:08:50.580 | it's what we call hearsay.
00:08:51.980 | Under the rules of evidence, specifically Rule 801(d)(2)(A) if you want to look it
00:08:55.560 | up, everything you tell the police, as the saying goes, can and will be used against
00:08:59.740 | you, but it cannot be used for you.
00:09:01.340 | From time to time, I've known attorneys who tried to call to the stand of police officers
00:09:05.220 | and say, "Officer, would you tell the jury what my client told you because what my client
00:09:08.420 | told him is actually good for my case?"
00:09:10.100 | If you tried that at trial, the prosecutor will object to that as hearsay, and the judge
00:09:13.060 | will agree.
00:09:14.060 | The police will not be allowed, at your request, to tell the jury what your client told him,
00:09:18.020 | no matter how good it may be for your case.
00:09:19.700 | It cannot help.
00:09:21.580 | And that ought to be good enough reason.
00:09:22.580 | That ought to be reason enough to keep your mouth shut.
00:09:26.380 | But if you're not persuaded, let me go talk about a couple of others.
00:09:28.580 | Number two, obviously one of the most obvious, if your client is guilty, as many of them
00:09:33.580 | are, but even if he's not, even if he's innocent, he may well admit his guilt with
00:09:38.500 | no benefit in return.
00:09:39.980 | Now, of course, many of you are thinking to yourself, "Well, what's so wrong about
00:09:43.660 | that?
00:09:44.660 | I mean, shouldn't guilty people be confessing?
00:09:46.340 | Confession's good for the soul.
00:09:47.620 | It's good for law enforcement.
00:09:48.700 | It's good for the prisons."
00:09:49.700 | Yes, yes, sure, all those things are true.
00:09:51.840 | And like the rest of you, if I or anyone close to me is ever the victim of some sort of a
00:09:55.260 | serious crime, I hope they get the right guy.
00:09:57.140 | I hope they convict him.
00:09:58.140 | I hope they put him away.
00:09:59.140 | We all feel that way.
00:10:00.140 | Hey, but what's for the rush, friends?
00:10:02.020 | You don't got to admit your guilt the first time they come by to meet with you.
00:10:04.820 | In federal court, 86% of all defendants plead guilty at some point before trial.
00:10:09.780 | If your client is guilty and really ought to punish and really ought to go through some
00:10:13.280 | sort of a cleansing act of contrition and fess up and admit his guilt, there'll be plenty
00:10:17.140 | of time to do that.
00:10:18.140 | They almost always do.
00:10:19.180 | No need to rush.
00:10:20.180 | No need to tell the police something.
00:10:21.980 | Wait and see if perhaps your client can work out some sort of an arrangement where maybe
00:10:26.220 | he'll make some sort of compensation to the alleged victim or maybe he'll be able to get
00:10:29.100 | some sort of a discount in his sentence.
00:10:31.180 | And he'll be treated fairly then like everybody else who had the benefit of a good lawyer
00:10:35.060 | who said, "Please do not talk to the police."
00:10:37.460 | And don't forget, by the way, even if your client only admits things that the police
00:10:43.420 | already knew, you might think, "Well, what harm can it do?
00:10:45.780 | He says he wants to talk to the police.
00:10:47.100 | All he wants to do is admit that he was there, but the cops know that he was there.
00:10:49.620 | All right, go ahead and tell them.
00:10:50.620 | Well, how can it hurt?"
00:10:51.620 | It might hurt if the police officer becomes transferred to Minnesota or deceased or injured
00:10:55.420 | or comatose or cannot be located by the time of trial.
00:10:57.740 | The case will be dismissed if there's no confession.
00:10:59.780 | But if your client admits two things, that confession is freely admissible against him
00:11:03.820 | and can be a basis for getting him convicted all by himself.
00:11:07.060 | Senator Larry Craig can explain all this to you.
00:11:11.420 | The Innocence Project of the United States has confirmed that in more than 25% of all
00:11:17.300 | the cases where an innocent man was convicted and then later released from prison after
00:11:21.180 | he was exonerated by DNA evidence, in more than a quarter of those cases, these innocent
00:11:24.860 | people, people we know to be innocent, made incriminating statements, delivered outright
00:11:28.500 | confessions or pled guilty.
00:11:30.900 | How do they do that?
00:11:31.900 | He'll tell us all about it, I trust.
00:11:33.700 | Here's a couple of famous examples.
00:11:34.940 | You can just ask them.
00:11:35.940 | You don't have to take my word for it.
00:11:37.180 | There on the left is Eddie Joe Lloyd.
00:11:39.100 | He was convicted in 1984 of the murder of a 16-year-old girl in Detroit after he wrote
00:11:43.440 | to police with suggestions on how to solve various recent crimes.
00:11:46.540 | During several interviews, police fed details of the crime to Mr. Lloyd, who was mentally
00:11:50.140 | ill, and they lied to him and convinced this mentally ill man that by confessing, he might
00:11:55.420 | help them smoke out the real killer.
00:11:57.420 | He later signed a confession.
00:11:58.420 | He gave a tape-recorded statement.
00:12:00.280 | The jury delivered it less than one hour before convicting him on the basis of this confession.
00:12:03.840 | There was no other substantial evidence against him.
00:12:05.740 | The judge said, "I'd hang you if I could," but the death penalty was not available in
00:12:09.180 | Michigan at the time.
00:12:10.340 | But after almost two decades in prison, he was released after DNA evidence proved that
00:12:14.220 | this man was innocent and had falsely confessed to a crime that he did not commit.
00:12:17.780 | On the right is Earl Washington, who was released from prison just a few years ago here in Virginia
00:12:22.740 | after spending 18 years behind bars after being committed of a rape and a murder that
00:12:27.340 | we now know he did not commit after having been exonerated by DNA evidence.
00:12:30.900 | But this man, Mr. Washington, who was in fact confirmed to be mentally retarded, was able
00:12:35.820 | to confess to several crimes at the request of the police, some of which we know he could
00:12:39.580 | not have committed.
00:12:41.660 | That's the problem.
00:12:43.780 | Some of you are thinking to yourself, "Well, none of this concerns me because I'm not guilty
00:12:46.740 | of anything and I never will be and I will never represent people who do."
00:12:50.140 | Okay.
00:12:51.140 | Let's talk to you people, you innocent folks, those of you who have never committed a crime
00:12:55.860 | and never will and none of your clients will either and you wouldn't go out with a girl
00:12:59.060 | who did.
00:13:00.060 | Fine.
00:13:01.060 | You better not talk to the police either, okay?
00:13:03.260 | Because number three, we'll put the guilty behind us.
00:13:05.220 | Forget about them.
00:13:06.220 | Let's talk about innocent people.
00:13:07.540 | Number three, even if your client is innocent and he denies his guilt and almost entirely
00:13:11.920 | tells the truth, odds are good he will easily get carried away and tell some little lie
00:13:15.980 | or make some little mistake that will hang him.
00:13:18.340 | This is human nature.
00:13:19.340 | He gets in there.
00:13:20.340 | It's a stressful situation.
00:13:21.340 | Imagine a perfectly innocent client.
00:13:22.500 | The police say he's been guilty of a murder.
00:13:24.020 | He's totally innocent, as innocent as any one of us.
00:13:26.020 | So he goes in there and he meets with the police.
00:13:27.420 | He says, "I don't know what you're talking about.
00:13:29.140 | I was nowhere near there.
00:13:30.540 | I didn't kill him.
00:13:31.540 | I've never killed anybody.
00:13:32.540 | I don't have a gun.
00:13:33.540 | I've never had a gun.
00:13:34.540 | I've never touched a gun in my life.
00:13:35.540 | I was nowhere near Virginia Beach that night."
00:13:36.540 | That last line was a lie.
00:13:38.540 | He went over the top.
00:13:39.540 | He was getting carried away.
00:13:40.540 | He got into this groove.
00:13:41.540 | He started saying all kinds of things, almost all of them true that he knew would tend to
00:13:44.860 | exculpate himself.
00:13:45.980 | Then he got carried away and just said one thing that wasn't true.
00:13:48.740 | And unfortunately for him, they can prove that it wasn't true.
00:13:50.860 | He may be convicted on that basis alone.
00:13:53.140 | But let's say, "Oh, that's not a problem.
00:13:55.060 | I'll tell my client only to tell the truth.
00:13:56.620 | I've met with him.
00:13:57.620 | I know he won't lie to the police.
00:13:58.620 | He won't make any mistakes."
00:13:59.620 | Okay, that's still no guarantee you won't be getting into trouble.
00:14:01.740 | Because even if your client is innocent and only tells the truth and doesn't say anything
00:14:06.180 | that is false.
00:14:07.180 | Now, already mind you were pretty well nigh into fantasy land.
00:14:10.460 | The odds of this being anybody being able to pull this off are really quite slim no
00:14:13.220 | matter how innocent they may be, but just for the same, let's pretend.
00:14:16.180 | Let's assume he gives the police nothing but the truth and he is totally innocent.
00:14:19.040 | He will always give the police some information that can be used to help convict him, always.
00:14:24.740 | For example, suppose you tell this to the police.
00:14:26.540 | Here's what your client tells the police in his denial of guilt.
00:14:28.860 | "I don't know what you're talking about.
00:14:30.340 | I didn't kill Jones.
00:14:31.340 | I don't know who did.
00:14:32.340 | I wasn't anywhere near that place.
00:14:33.340 | I don't have a gun.
00:14:34.340 | I've never owned a gun in my life.
00:14:35.340 | I don't even know how to use a gun.
00:14:36.340 | Yeah, sure, I never liked the guy, but who did?
00:14:37.540 | I wouldn't kill him.
00:14:38.540 | I've never hurt anybody in my life and I would never do such a thing."
00:14:41.260 | Let's suppose every word of that is true.
00:14:42.580 | 100% of it is true.
00:14:43.700 | What will the jury hear at trial?
00:14:45.700 | Officer Brooke, was there anything about this, your interrogation, your interview with the
00:14:49.140 | suspect that made you concerned that he might be the right one?
00:14:51.620 | Yes, there was.
00:14:52.620 | He confessed to me that he never liked the guy.
00:14:54.140 | And then the prosecutor will put that up in big letters and he'll say, "Ladies and gentlemen
00:14:56.980 | of the jury, it's pretty clear that we've got the right guy here.
00:14:59.260 | We've proven that he was in Virginia Beach that night.
00:15:01.420 | That's opportunity."
00:15:02.420 | And remember, Officer Brooke admitted that after extended questioning, he was finally
00:15:05.340 | able to get the defendant to admit that he never liked the guy.
00:15:07.980 | There's your motive.
00:15:08.980 | Motive plus opportunity.
00:15:09.980 | Wham, bam.
00:15:10.980 | Please.
00:15:11.980 | But juries eat it up and innocent people get convicted this way sometimes.
00:15:16.700 | How often?
00:15:17.700 | Hopefully not too often, but we know what happens.
00:15:19.620 | The United States Supreme Court, don't take my word for this, in Ohio versus Ryan, the
00:15:23.420 | Supreme Court of the United States said, "One of the Fifth Amendment's basic functions is
00:15:27.860 | to protect innocent men who otherwise might be ensnared by ambiguous circumstances.
00:15:32.860 | Truthful responses of an innocent witness as well as those of a wrongdoer may provide
00:15:37.820 | the government with incriminating evidence from the speaker's own mouth."
00:15:40.260 | See, it's not just some criminal defense attorney telling you this.
00:15:42.580 | Even the Supreme Court says I'm right.
00:15:44.460 | Under the facts of that case, by the way, in Ohio versus Ryan, a child tragically was
00:15:47.780 | died, apparently the result of shaken baby syndrome.
00:15:50.580 | Question was who had shaken this baby to death.
00:15:52.860 | And one of the possible suspects was a babysitter who had spent some time with the child that
00:15:57.300 | week.
00:15:58.300 | The babysitter's story was, "I don't know what you're talking about.
00:16:00.660 | I did not kill the child.
00:16:01.660 | I did not see it happen.
00:16:02.980 | I don't know who shook the baby.
00:16:04.140 | It was never me.
00:16:05.140 | I never did anything of any violent nature to the child."
00:16:07.540 | The Ohio State Court said, "Well, you've got no Fifth Amendment privilege.
00:16:10.300 | You, by your own admission, told the investigators that you've done nothing wrong, that you were
00:16:13.380 | not involved.
00:16:14.380 | So, obviously, your answers can't incriminate you."
00:16:15.980 | The United States Supreme Court reversed and said, "Well, that's not true.
00:16:18.780 | Even though this babysitter denies shaking the child, denies seeing the child die, denies
00:16:23.700 | knowing how the child died, this babysitter, by her own admission, apparently was being
00:16:29.340 | -- the government wanted to ask whether the babysitter might have been with the child
00:16:33.380 | at some point that week, during the week prior to the death.
00:16:35.780 | And that answer, although by itself not sufficient to convict anybody, could help convict her.
00:16:40.020 | That means she's got a Fifth Amendment right to refuse to answer to the question the court
00:16:42.860 | held, because it could be used to help convict."
00:16:47.180 | Allman v. United States, the Supreme Court said more than 50 years ago, eerily prophetic,
00:16:53.300 | they said, "Too many Americans, even those who should be better advised, view this privilege
00:16:57.260 | as a shelter for wrongdoers.
00:16:58.900 | They too readily assume that those who invoke it are either guilty of crime or commit perjury
00:17:02.240 | in claiming the privilege."
00:17:03.620 | That's not true, and it never has been.
00:17:05.980 | But it gets worse.
00:17:06.980 | Can it get worse?
00:17:07.980 | It can.
00:17:08.980 | Number five, even if your client is innocent and only tells you the truth, and does not
00:17:13.220 | tell the police anything incriminating -- which, by the way, is almost impossible to pull this
00:17:16.940 | off.
00:17:17.940 | I mean, imagine talking to the police for two, three, four hours, and somebody like
00:17:20.940 | him can't somehow manage to extract from you something that could be used to help convict
00:17:24.420 | you.
00:17:25.420 | That'd be extraordinary.
00:17:26.420 | I don't think anybody's pulled it off.
00:17:27.420 | But even if you could pull it off, there's still a grave chance that his answers can
00:17:31.260 | and will be used to crucify you in a court of law if the police -- no offense -- don't
00:17:35.900 | recall his testimony with 100 percent accuracy.
00:17:37.980 | All right, now this brings us back to that pop quiz I warned you about.
00:17:40.660 | I told you earlier, remember, it's only been a few minutes, and you weren't up all night,
00:17:44.620 | and you weren't the subject of physical duress.
00:17:46.340 | You were in the relaxed setting of a classroom here.
00:17:48.380 | You were given heads-up, advance notice that you would be quizzed on this.
00:17:51.220 | Question.
00:17:52.220 | We'll start with a couple of easy ones.
00:17:55.700 | Remember that article I read to you about that -- how many people did the police find
00:17:58.820 | shot to death last night at that Ocean View apartment that I told you about?
00:18:01.340 | A?
00:18:02.340 | One, B, two, C, three, D, four.
00:18:04.020 | Who says A?
00:18:06.060 | B?
00:18:07.780 | C?
00:18:09.780 | Get this.
00:18:10.780 | Get that with a camera.
00:18:11.780 | Move that camera around.
00:18:12.780 | Look how many hands we've got there for C. Okay, D?
00:18:17.300 | You're all wrong.
00:18:19.300 | Everybody who raised their hand, everybody who raised their hand, you are the kind of
00:18:23.540 | people who should never talk to the police under any circumstances for as long as you
00:18:27.380 | live.
00:18:28.380 | That's not the right answer, by the way.
00:18:29.380 | If you know, raise your hand.
00:18:30.380 | Yes.
00:18:31.380 | >> Because he didn't state the cause of death.
00:18:34.020 | >> Excellent.
00:18:35.020 | I didn't say anybody was shot.
00:18:37.140 | I didn't say gun, bullet, shooting, firearms.
00:18:42.060 | Didn't use any of those words.
00:18:44.220 | But I don't blame you if you thought that I did.
00:18:46.380 | This is the way the human mind works.
00:18:48.060 | We hear things.
00:18:49.060 | We fill in details.
00:18:50.060 | I said gangland-style slaying.
00:18:51.980 | That may or may not imply something, but it doesn't mean that anybody was shot.
00:18:55.300 | And that's the problem.
00:18:56.700 | You see, even if your client is innocent and only tells the truth and doesn't tell them
00:19:00.700 | anything incriminating and his statement is videotaped, his answers can be used to crucify
00:19:04.940 | him.
00:19:05.940 | You might say, "Wait, how can that happen?"
00:19:07.220 | I insisted.
00:19:08.220 | In my insistence, I called the police and I said, "Look, if you want to talk to my client,
00:19:10.940 | you can talk to him, but only if you videotape the whole thing.
00:19:13.220 | I don't want there to be any debate between the two of you over what happened."
00:19:16.340 | Okay, we'll videotape the whole thing.
00:19:18.260 | If the police don't recall their questions with 100% accuracy, he'll be convicted on
00:19:21.740 | that statement alone.
00:19:22.740 | For example, suppose a man goes to the police.
00:19:25.160 | They say, "We're investigating a possible murder, a shooting."
00:19:28.020 | And the guy says, "I don't know who killed Jones, Officer Brooke, with all due respect.
00:19:31.580 | It wasn't me.
00:19:32.580 | I've never touched or fired a gun in my life."
00:19:34.660 | How can that help incriminate this man?
00:19:36.300 | How can that possibly be used against this man to help convict him?
00:19:39.420 | You would think it's inconceivable, but it's as easy as pie.
00:19:43.100 | All the officer has to do is read the statement to the jury and then the prosecutor says,
00:19:46.500 | "Officer Brooke, was there anything about that statement that confused you or surprised
00:19:49.180 | you?"
00:19:50.180 | "Yes, there was," he says in a moment of sinister high drama in the courtroom.
00:19:52.340 | And what was that?
00:19:53.340 | Officer Brooke turns to the jurors and he says, "I never said anything about a shooting.
00:19:56.680 | I said we were investigating a murder.
00:19:59.200 | He was the one who brought up a gun."
00:20:01.840 | Then you turn to your client and your client says, "That's not true.
00:20:03.840 | That's not true.
00:20:04.840 | I remember he was the one or one of the cops.
00:20:05.920 | I was with them for three hours.
00:20:06.920 | One of them in the car said something about they said they had a witness that I was the
00:20:09.400 | shooter."
00:20:10.400 | "Okay, I'll put you on the stand."
00:20:11.400 | And then your client testifies, "No, no, no.
00:20:13.320 | They did tell me shooting.
00:20:14.320 | I mentioned, they mentioned it before I said anything about a gun.
00:20:16.320 | They brought it up first."
00:20:17.320 | And then the police said, "That's not true."
00:20:18.520 | And now what?
00:20:19.520 | It's your word against theirs?
00:20:20.520 | For what?
00:20:21.520 | It's your client's life.
00:20:22.980 | And police officers can very easily make a mistake like that, just as so many of you
00:20:26.660 | did just a few minutes ago about whether you recall having heard me say something about
00:20:30.200 | somebody actually being shot.
00:20:33.020 | Police make mistakes, innocently, inadvertently, unintentionally, any statement, no matter
00:20:37.660 | how exculpatory it may seem on its face, can be used to crucify you all by itself if the
00:20:41.660 | police are either willing to lie, not likely, or if they just have an innocent misrecollection
00:20:46.740 | of the details as to what they did and did not tell you before you told them what you
00:20:49.620 | said.
00:20:50.780 | All of these, by the way, all of these problems disappear if you take Justice Jackson's advice
00:20:54.060 | and say, "Thank you very much, officer, but no thanks."
00:20:56.180 | How about this one?
00:20:58.700 | Here we go.
00:20:59.700 | Now, here's the most surprising of all.
00:21:00.700 | I've saved the most surprising one for last.
00:21:03.020 | Let's suppose you've got the following scenario.
00:21:04.860 | Your client's thinking about talking to the police.
00:21:06.700 | He acts like he says, "I've got nothing to hide.
00:21:08.880 | They think that I killed somebody in Virginia Beach last night."
00:21:12.340 | And this is what your client tells you in confidence.
00:21:14.620 | "I don't know who robbed that store.
00:21:16.580 | It wasn't me.
00:21:17.580 | In fact, I've got a pretty good alibi.
00:21:19.260 | I wasn't even in Virginia Beach that night, last night.
00:21:22.620 | I was four hours away visiting my mother in the Outer Banks.
00:21:25.420 | Unfortunately, no, I did not pay for gas with a credit card.
00:21:29.060 | I used cash, and so I've got no witnesses that can prove I was there except my word,
00:21:32.700 | and of course, mama, for what that's worth, which is nothing."
00:21:38.620 | So your client says, "So the police want to talk to me, and I want to seem cooperative,
00:21:41.800 | so what I'll do is I'll tell them that I was in the Outer Banks last night."
00:21:44.620 | Now, there's nothing on its face incriminating about any of that.
00:21:47.600 | Just assume, by the way, that you believe with all your doubt.
00:21:49.940 | You've given your client a polygraph exam.
00:21:52.720 | You've known him for years.
00:21:53.720 | You've been going to the same Bible study for 30 years.
00:21:55.720 | You know beyond a shadow of a doubt that he's telling you the truth.
00:21:59.740 | And he's not admitting anything.
00:22:00.740 | He's not admitting motive.
00:22:01.740 | He's not admitting opportunity.
00:22:02.740 | He's not admitting that he was there.
00:22:04.660 | How on earth could this come back to haunt us?
00:22:06.700 | How on earth could this come back to be used against us?
00:22:09.300 | Be honest.
00:22:10.300 | Raise your hand if you really think the answer to that question is, "I can't see how it could
00:22:12.340 | possibly be used against me."
00:22:13.340 | You're afraid I'll call on you, right?
00:22:15.380 | I won't call on you.
00:22:16.380 | Well, you're wrong.
00:22:17.380 | You're dead wrong.
00:22:18.380 | You're always wrong.
00:22:19.380 | Everything you say, every time you talk to the police, you will regret it.
00:22:24.260 | You see, the problem is, here it is.
00:22:25.780 | This is the last point.
00:22:27.500 | I think it's almost over.
00:22:28.660 | Even if your client is innocent and only tells the truth and doesn't tell the police anything
00:22:31.660 | incriminating and the entire interview, questions and answers are videotaped, even his truthful
00:22:36.660 | answers can be helped to use, crucify even an innocent man.
00:22:39.580 | If the police, through no fault of theirs, end up in the possession of any evidence,
00:22:43.260 | even mistaken and unreliable evidence, that anything your client told them was false,
00:22:47.500 | even if in fact it was true.
00:22:48.780 | Again, going back to this example from a moment ago.
00:22:51.420 | Let's suppose I go ahead and I meet with the police.
00:22:53.500 | I think I've got nothing to hide.
00:22:54.580 | I tell them, "I was in the Outer Banks last night, officer.
00:22:56.780 | How can that be used to convict me?"
00:22:58.020 | By itself, it cannot.
00:22:59.020 | It cannot help at all by itself.
00:23:01.060 | What if I later find out, to my horror, after I put my cards on the table, that they've
00:23:04.900 | got a witness, a girl that I went to high school with, an unimpeachable witness.
00:23:08.660 | We've never been enemies.
00:23:09.660 | She'd have no reason to lie.
00:23:10.940 | She swears she thinks she saw me in Virginia Beach last night, a couple of blocks away
00:23:14.380 | from that store, about an hour before I was robbed.
00:23:16.780 | Now, her testimony by itself isn't going to help the prosecutor.
00:23:19.860 | Hell, if she's all they've got, I'll get this case thrown out before trial.
00:23:23.580 | But if like an idiot, I talk to the police and I told them the truth, I told them I was
00:23:27.980 | in the Outer Banks, and now lo and behold, tragically, it turns out they've got a witness,
00:23:31.620 | a false, mistaken, confused, but sincere, incredible witness, who can testify that I
00:23:35.420 | was here in Virginia Beach, now they're likely to get a conviction.
00:23:38.780 | Because what they'll do, I've just turned this cop and this woman into the government's
00:23:41.740 | star witnesses.
00:23:42.740 | They'll put her, hell, they'll put Officer Bruca on to testify about how my client lied
00:23:45.460 | to him about being in the Outer Banks, and then they'll put on this girl, this girl who
00:23:49.260 | otherwise would have not even helped with their case at all, who will testify, "No,
00:23:51.900 | that's not true.
00:23:52.900 | That was a lie.
00:23:53.900 | I saw Mr. Duane's client here in Virginia, an hour before the robbery, not so far from
00:23:57.340 | the store."
00:23:58.340 | By herself, she would not have helped the government in any significant way.
00:24:00.860 | But what I have just done, you see, is given them the other part of the puzzle, and now
00:24:04.600 | I'm doomed.
00:24:07.700 | Don't ask them.
00:24:09.740 | I close with this example.
00:24:12.080 | Here we have a couple of recent celebrity examples of why it is that even people who
00:24:15.980 | admit nothing always end up denying it.
00:24:18.420 | I mean, sorry, they always end up regretting it.
00:24:21.020 | On the left, we have Martha Stewart.
00:24:22.420 | She was the victim, the subject, of an extensive government investigation that was looking
00:24:25.940 | into the possibility that she was guilty of violations of certain federal laws, securities
00:24:30.100 | laws, fraud kinds of things.
00:24:31.700 | They couldn't pin that on her, but they were able to get a conviction because she denied
00:24:35.340 | it.
00:24:36.340 | She went to the police, and later, to someone at the shareholders, she said, "No, it's not
00:24:38.780 | true.
00:24:39.780 | I was not guilty."
00:24:40.780 | So they charged her with lying to federal investigators, and they got a conviction,
00:24:43.580 | and she was sentenced to five months in prison.
00:24:44.900 | Marion Jones, on the right side, another person who would still be out today if she had always
00:24:49.900 | taken the advice that I'm giving you now, she was asked if she had ever used steroids,
00:24:53.940 | a controlled substance.
00:24:55.420 | And instead of taking the fifth, she said, "No, I never took steroids when I won those
00:24:58.420 | Olympic gold medals."
00:24:59.420 | Later on, it turned out that she was lying.
00:25:01.700 | She worked out a deal.
00:25:02.700 | She pled guilty.
00:25:03.700 | She admitted that she was lying.
00:25:04.700 | She pleaded guilty over her strenuous, tear-filled objection, even though she has two young children,
00:25:07.580 | was just recently sentenced to prison for six months.
00:25:10.580 | The guy who sold her the steroids, the pusher, he got only four months, but she got six months
00:25:14.740 | because she lied to the police and said that she did not do it.
00:25:17.700 | You see the problem.
00:25:18.700 | Michael Vick, who originally pled guilty, as you know, to these charges with respect
00:25:22.060 | to the operation of this dog combat sort of operation at his home.
00:25:26.420 | At sentencing, like many other criminal defendants, even though he eventually pled guilty at sentencing,
00:25:30.900 | one of the reasons his sentence was a little harder than it might have otherwise been,
00:25:34.140 | the judge said, was because when he initially met with the police, he lied to them and said,
00:25:37.460 | "I didn't do anything.
00:25:38.460 | I didn't do it.
00:25:39.460 | I don't know what you're talking about."
00:25:41.300 | Even guilty people, but not only guilty people, will always end up regretting talking to the
00:25:44.420 | police.
00:25:47.300 | So my advice to you, Justice Jackson was right.
00:25:50.460 | Any sane, competent lawyer in his right mind will always tell every client under all circumstances,
00:25:54.180 | "I don't care if you're innocent.
00:25:55.380 | I don't care if it's the truth.
00:25:56.540 | If it's the truth, great.
00:25:58.100 | We'll tell the jury all about it.
00:25:59.100 | There'll be time enough to put our cards on the table.
00:26:01.020 | But before we get there, I haven't seen yet what the police got.
00:26:03.420 | They may have mistaken and confused witnesses who will contradict even the truthful stuff
00:26:06.860 | that you say.
00:26:07.860 | We have no way to know, no way to predict whether the information that you give them,
00:26:11.740 | even if truthful and reliable, will end up unwittingly dispelling our demise.
00:26:16.300 | So keep your mouth shut.
00:26:17.960 | Don't answer any questions.
00:26:19.060 | Let's take the fifth.
00:26:20.060 | You'll be glad that you did.
00:26:21.060 | God bless America.
00:26:22.060 | God bless the Bill of Rights and the geniuses who bequeathed it to us.
00:26:25.100 | But now in fairness, I give equal time, or what's left of equal time, to a police officer
00:26:31.540 | who will explain to the extent to which, if any, he agrees or disagrees with anything
00:26:35.100 | I've got to say.
00:26:36.100 | I have no idea to know what he's going to say, but it'll be interesting.
00:26:38.620 | Here, let me give him the microphone.
00:26:40.500 | Let's give him a hand.
00:26:41.500 | [applause]
00:26:42.500 | Officer George Brooke, the Virginia Beach Police Department.
00:26:51.780 | I cannot talk that fast.
00:26:55.860 | Not even interviewing.
00:26:56.860 | I'm going to take the podium here, Professor.
00:26:58.860 | I took notes on some of the things you said.
00:27:02.060 | And everything he said was true.
00:27:05.620 | And it was right, and it was correct.
00:27:07.340 | And I'm just going to give you a few ideas.
00:27:08.580 | I'm going to tell you a few examples, but first I'm going to give you a little information.
00:27:15.300 | As was said earlier, I've interviewed thousands of people.
00:27:17.260 | I've interviewed people with foreign police departments.
00:27:19.340 | When I was in the Navy, I was in law enforcement, and I was a criminal investigator.
00:27:24.140 | Thank God we're in the United States, because most interviews in Italy, Spain, and so forth
00:27:28.140 | start out physically.
00:27:30.580 | There's no police abuse over there.
00:27:32.780 | They can do pretty much what they want, any time they want, any how they want.
00:27:36.460 | So just be aware of that and be thankful for that.
00:27:40.420 | Biggest question I was asked when I first -- I am a 3L, and there's some of my classmates
00:27:44.260 | in here.
00:27:45.260 | The best day is coming up, May 10th, when we get to leave.
00:27:49.620 | So those of you that are applying, and I told a couple of people this, you think it's hard
00:27:52.700 | getting into law school, try getting out.
00:27:55.500 | A couple of things I was asked.
00:27:58.900 | How do I quit from getting speeding tickets?
00:28:00.500 | Very easy question.
00:28:01.500 | Quit speeding.
00:28:02.500 | But something Professor Duane brought up.
00:28:06.380 | Are any of you guilty of anything?
00:28:08.060 | How many of you drove here today?
00:28:11.060 | Anybody go above 55 on the interstate?
00:28:14.220 | Anybody drive at home and go above 55 on the interstate?
00:28:17.340 | Because if you stay --
00:28:18.740 | [laughter]
00:28:34.180 | And there you go.
00:28:35.180 | And people aren't inherently honest, and that's their biggest downfall.
00:28:38.740 | They really are.
00:28:39.740 | Or they want to tell their story.
00:28:41.460 | And if you drive 55 on the interstate where it's 55, the only thing you're going to do
00:28:44.820 | is meet the person behind you because they're going to rear-end you and you're going to
00:28:47.140 | get run over.
00:28:48.140 | So that's a fact.
00:28:49.580 | But everybody does something that they can get in trouble for.
00:28:51.620 | I can follow as a police officer when I was in uniform.
00:28:53.580 | I could follow a car however long I needed to, and eventually they're going to do something
00:28:57.780 | illegal and I can pull them over.
00:29:00.300 | And justifiably illegal to pull them over with.
00:29:02.740 | So just be aware of that.
00:29:04.660 | Don't think you're so innocent in such a thing.
00:29:07.980 | When you get stopped for a traffic ticket, everyone likes to be somewhat honest.
00:29:12.300 | And what's the first thing the police officer asks you?
00:29:14.820 | Do you know how fast you were going?
00:29:16.300 | If the speed limit's 35, you'll say, "Oh, 38, 40."
00:29:20.940 | Because you want to be kind of honest even though you're doing 50.
00:29:24.660 | You just said 38, 40.
00:29:25.780 | You just admitted to breaking the law.
00:29:28.500 | You just confessed.
00:29:30.340 | So they can go to court with that, with a confession that you were exceeding the speed
00:29:33.620 | limit.
00:29:34.620 | Okay, so you need to think about those things.
00:29:37.220 | And when you do become defense attorneys, which I may, who knows, you need to think
00:29:42.220 | about those things for your clients.
00:29:44.100 | The other thing you need to think about your clients, and this is going to seem very terse,
00:29:48.540 | people are stupid.
00:29:50.180 | Your clients are stupid.
00:29:52.060 | And I've had defense attorneys come up to me.
00:29:53.700 | As a matter of fact, one on a motion to suppress just Tuesday, come up to me and tell me his
00:29:58.620 | client was stupid.
00:30:00.620 | Okay?
00:30:01.980 | They're very straightforward.
00:30:03.940 | They do foolish things.
00:30:05.380 | They talk to the police.
00:30:07.140 | You guys need to be aware of that.
00:30:10.620 | Now in my past, and it wasn't exaggerated, I have interviewed thousands of people.
00:30:16.020 | I have arrested and dealt with over 1,000 felonies, well actually more than 1,000 felonies,
00:30:22.300 | probably about 20, no, about 1,000 felonies, 2,500 misdemeanors, 98% of them conviction
00:30:28.020 | rate, 80% of them I don't even have to go to court.
00:30:30.700 | Why?
00:30:31.700 | Because there's confessions.
00:30:33.900 | Because they confess.
00:30:36.020 | So these people have no problem.
00:30:38.540 | And hardened criminals have no problem talking to the police.
00:30:41.820 | People like to tell their story.
00:30:44.540 | And they'll sit in that room and think about it.
00:30:47.180 | You're picked up by the police.
00:30:48.180 | You're in a little room.
00:30:49.820 | There's one chair here, there's a desk, there's another chair.
00:30:52.700 | What's the thing you want the most right at that point?
00:30:56.180 | To get out of that room.
00:30:57.180 | To be out of that room.
00:30:59.900 | Think the police officer's shift is ending in 15 minutes.
00:31:03.500 | Does the police officer want to get out of that room?
00:31:06.180 | My overtime rate's $58 an hour.
00:31:07.620 | Do I want to get out of that room?
00:31:08.980 | I have no problem.
00:31:10.220 | I'll stay there for 10 hours.
00:31:12.340 | I'll take that $600.
00:31:14.620 | So I have no motivation to want to leave.
00:31:16.660 | You do.
00:31:17.660 | And that's how we get you to try to talk.
00:31:21.020 | I have my job.
00:31:22.020 | My job is to develop probable cause, develop a good case, a great case is a case with a
00:31:28.620 | confession, get it to the Commonwealth's attorney so that they can prosecute the case with little
00:31:34.820 | if any effort.
00:31:35.820 | And the Commonwealth attorneys love those cases, the little if any effort, because they
00:31:39.540 | come with a stack of files that high in court every day.
00:31:43.740 | So they love those cases.
00:31:45.000 | That's my job.
00:31:46.000 | The defense attorney's job is to hope they get to their client before I do and make sure
00:31:51.100 | they don't talk to me, no matter what.
00:31:53.700 | I'll give you an example, and this will go right along with what Professor Duane was
00:31:57.420 | putting up his examples.
00:31:58.420 | I had an interview that went something like this.
00:32:01.220 | Were you involved in the burglaries?
00:32:02.220 | No, I had nothing to do with them.
00:32:04.500 | You didn't have anything to do with them?
00:32:05.500 | No.
00:32:06.500 | You were in a car with all this stolen stuff in it?
00:32:07.500 | You had nothing to do with it?
00:32:09.900 | No.
00:32:10.900 | You knew it was there?
00:32:11.900 | Yeah.
00:32:12.900 | Okay, now we've got possession of stolen property, felony.
00:32:15.180 | But you had nothing to do with it?
00:32:16.900 | No.
00:32:17.900 | So what did you need the money for?
00:32:18.900 | I had to pay some of my court costs from another thing I got in trouble for.
00:32:22.740 | Oh, so he took the money from stealing the stuff.
00:32:24.940 | I have enough to charge him now with burglary.
00:32:28.180 | Simple as that.
00:32:29.180 | Would you see the picture on that camera of the house with the Christmas decorations?
00:32:34.340 | This is a real case scenario.
00:32:35.620 | Yeah, did you go in that house?
00:32:37.140 | No, I didn't go into that one.
00:32:43.060 | So there's ways around it.
00:32:46.260 | There's ways to get around people who try not to talk to you.
00:32:49.740 | And again, as Professor Duane said, if you wanted to go and say you wanted to go into
00:32:54.260 | a boxing match, $100 if you win.
00:32:57.420 | You've never boxed before.
00:32:59.320 | You have to face somebody who's an Olympic boxer.
00:33:01.860 | You're going to lose.
00:33:04.220 | You're going to face somebody who's been interviewing people for, in my case, 28 years.
00:33:10.340 | You're going to lose, unless you're purely innocent.
00:33:14.980 | Now on the other side of it, I don't want to put anyone that's innocent in jail.
00:33:19.940 | But I try not to bring anyone into the interview room that's innocent.
00:33:23.780 | And there are a couple that I have let walk away because they were innocent.
00:33:28.180 | Okay, the interviews.
00:33:30.500 | How do we approach the interviews?
00:33:31.940 | There's a number of ways to approach interviews.
00:33:33.300 | There's a number of types of people that I deal with.
00:33:36.100 | First thing I do, anyone know what they get told first when they're in an interview?
00:33:40.340 | Miranda.
00:33:41.820 | Miranda warning.
00:33:42.820 | Okay, it's not a right.
00:33:45.500 | You don't have a right to Miranda.
00:33:46.740 | Those rights have always been there.
00:33:47.740 | It's called the Constitution.
00:33:48.740 | You're just teaching.
00:33:49.740 | You're doing a real quick class on the Constitution for these people.
00:33:53.180 | Usually they don't listen to it.
00:33:54.740 | And this is the way I give my Miranda warning.
00:33:56.700 | Look, I have to tell you this.
00:33:58.660 | Pay attention.
00:33:59.660 | Okay, they're usually sitting back or they're very attentive.
00:34:03.220 | You have the right to remain silent.
00:34:04.660 | You understand that?
00:34:05.660 | Yes.
00:34:06.660 | Anything you say may be used against you in a court.
00:34:08.620 | I don't have to say it will be.
00:34:09.940 | I say it may be.
00:34:10.940 | Okay, and they get that.
00:34:12.860 | You have a right to an attorney.
00:34:14.660 | And if you can't afford one, one may be appointed to represent you.
00:34:18.300 | Got that?
00:34:19.300 | You can decide not to talk, quit talking to me at any time and exercise these rights.
00:34:23.140 | You understand that?
00:34:24.580 | Sure.
00:34:25.580 | Now, before I do the primary thing that's needed with those rights, and that's to get
00:34:30.580 | a waiver, I say, "Now, before you say anything, let me tell you what I know."
00:34:37.720 | And over all the time I've had to put together what this individual was supposedly involved
00:34:42.420 | in, and I only say supposedly because Professor Duane's sitting over there, that this individual
00:34:46.860 | was involved in, I will tell the story that I put together and it'll be pretty close to
00:34:52.100 | what happened.
00:34:53.580 | And I can see that it's pretty close to what happened, because that individual starts slumping
00:34:57.520 | down in their chair, they'll put their hand to their face, doing this in their mind, "Oh
00:35:03.140 | my God, I'm going to jail forever."
00:35:04.580 | Okay?
00:35:05.920 | And I can see it.
00:35:06.920 | I said, "Now that you know what I know, do you want to talk to me?"
00:35:10.660 | And why do I do that?
00:35:13.200 | Because if I didn't do that, if I said, "Do you want to talk to me?"
00:35:17.100 | They'll say no.
00:35:19.040 | So I give them the time to think about, and then comes the next phrase.
00:35:23.540 | "Now, before you start talking to me, let me tell you the difference between a lie and
00:35:26.380 | a truth.
00:35:28.180 | If you lie to me, and I get before the judge, and I tell the judge that you were dishonest
00:35:32.600 | with me, that's just not going to make him happy.
00:35:35.460 | But if I get before the judge and tell him you're honest, straightforward, willing to
00:35:38.860 | take responsibility for your actions, that is going to help you.
00:35:43.960 | That's not a lie, though.
00:35:44.960 | That is true in Virginia Beach courts, it will help them.
00:35:48.500 | They may not get five years, they may get three years, they're still going to prison,
00:35:53.340 | or they're still going to have a felony, but it will help them.
00:35:56.900 | And then I have to determine what kind of person I have.
00:35:59.100 | And there's two types.
00:36:00.660 | There's the one like I mentioned to you earlier, where I have to talk to them, talk to them
00:36:05.380 | about different things, get into their own skin, as the word is, and try and get them
00:36:14.100 | to talk to me and discuss things.
00:36:15.960 | I had a sexual assault case.
00:36:18.740 | I had to talk to the guy, how hot the woman was, and I understand where he was coming
00:36:22.020 | from.
00:36:23.020 | And when I said that, we were buds.
00:36:25.700 | And he started talking to me.
00:36:27.860 | And he's still sitting in prison.
00:36:30.820 | So you've got to get in there and you've got to go places.
00:36:33.260 | The other side is, I can't try and act like that individual acts.
00:36:39.100 | I can't try and act like what we call lovingly a hood rat.
00:36:45.820 | I can't try and act and talk like him.
00:36:49.580 | Because I'm an older white guy.
00:36:51.940 | We don't talk like that, and that would be an insult.
00:36:55.900 | And you can't insult people.
00:36:57.100 | It doesn't matter who they are.
00:36:58.300 | It doesn't matter where they grew up.
00:36:59.580 | It doesn't matter where they're from.
00:37:01.460 | You can't insult people like that.
00:37:03.220 | You have to be yourself.
00:37:04.740 | So you have to get into their mindset and the way they're thinking and have a discussion
00:37:08.980 | with them.
00:37:11.040 | The other type of person is the one that likes to tell a story.
00:37:14.140 | This young man, great man, I love him to death.
00:37:16.500 | He didn't go to jail because I went to bat for him, because I felt sorry for him.
00:37:20.180 | He was newlywed.
00:37:21.180 | He was having money problems.
00:37:22.860 | Former Marine.
00:37:23.860 | I said, "Tell me what happened."
00:37:25.660 | And he told me this beautiful story about what happened.
00:37:29.660 | What he had done is he had sold a piece of equipment that his ex-employer had had that
00:37:33.740 | he had stolen.
00:37:34.740 | He told me the beautiful story of what happened about him finding it on the side of the road
00:37:39.340 | and all that kind of stuff.
00:37:40.340 | And I didn't even question about him.
00:37:43.500 | After he finished his whole story, very unplausible, but very beautiful story, I sat there and
00:37:48.260 | listened to it for 15 minutes.
00:37:50.540 | I looked at him and I said, "You stole the stuff from your boss, didn't you?"
00:37:53.460 | "Yes, sir, I did."
00:37:58.900 | I had nothing.
00:37:59.900 | I really had nothing except the fact that he had sold it.
00:38:02.700 | So there's those types of people.
00:38:04.780 | And then the third type, the one who tries to be the hood, who tries to be the criminal,
00:38:08.860 | who cries like a baby when they walk into jail, but when they're on the street, they're
00:38:11.580 | as tough as rocks.
00:38:13.180 | You go in there with your paperwork, you sit down, and you just start doing paperwork.
00:38:18.060 | And usually I have a videotape sitting on top of it, just for measure, so they think
00:38:22.100 | I have a videotape.
00:38:24.340 | And you just sit there.
00:38:26.500 | Don't tell 'em, "Miranda."
00:38:28.060 | Just sit there and wait for 'em to start talking, because they will.
00:38:32.220 | They want to talk.
00:38:33.220 | People want to communicate.
00:38:34.220 | They hate silence.
00:38:35.940 | That's why when people speak, you hear, "Uh, hmm," when they're talking, because they
00:38:40.580 | need to fill that void with something.
00:38:42.700 | People hate silence.
00:38:44.580 | So that's the other one.
00:38:46.340 | So that's another way.
00:38:47.380 | So you see how there's an unlevel playing field here.
00:38:50.180 | Even with the most educated individual, there's an unlevel playing field.
00:38:54.000 | If you talk to the police, everything's gonna be written down.
00:38:56.500 | If you get pulled over for a ticket, they give you the ticket, and you pull off.
00:39:02.140 | Do you ever see the cop pull off right after you?
00:39:05.100 | Usually not.
00:39:06.340 | That's because on the back of their ticket, they're writing down everything you said.
00:39:11.940 | And it's gonna come into court if you go to court.
00:39:16.260 | Everything that's said, I write down.
00:39:17.980 | Every phone call I make has to have a listening device on it.
00:39:22.980 | Is that illegal?
00:39:23.980 | How many parties need to know that a phone conversation in Virginia is being recorded?
00:39:29.380 | One.
00:39:30.380 | Me.
00:39:31.380 | I knew it was recorded.
00:39:33.660 | I get many, many confessions over the phone.
00:39:38.300 | Okay, back to the people.
00:39:42.300 | Yes, they're stupid.
00:39:43.300 | Okay, people are stupid.
00:39:44.660 | I had a young man who told me straight up, "I'm going to college.
00:39:49.460 | I'm going to law school.
00:39:52.540 | I'm too smart.
00:39:54.620 | You'll never find out what happened."
00:39:58.940 | He was going to Tidewater Community College.
00:40:02.100 | The law school love, I suppose.
00:40:03.420 | Tidewater Community College.
00:40:07.100 | He was the partner to the one who I told you the interview about just a little while ago
00:40:11.620 | where I would ask him what he needed the money for.
00:40:13.940 | He was his partner.
00:40:14.940 | And he was very smart.
00:40:18.060 | So he thought.
00:40:19.500 | He thought he was a very intelligent individual.
00:40:21.740 | I ended up arresting him five times out of his house.
00:40:25.100 | His mother hated me.
00:40:26.780 | She liked me the first time.
00:40:27.780 | She apologized.
00:40:28.780 | She didn't really like me much the second time.
00:40:30.620 | It got to the point where she really hated me after that.
00:40:33.580 | He's doing eight years upstate.
00:40:35.820 | He's very smart because he decided to tell me how smart he was.
00:40:40.100 | And in telling me how smart he was, he let it slip that he doesn't sell stolen stuff
00:40:44.780 | to pawn shops.
00:40:45.820 | He sells it to flea markets because they do not have to report to the state.
00:40:51.020 | I know how to drive to a flea market just as good as anyone else and go look for stuff
00:40:55.540 | that I'm looking for.
00:40:57.340 | So he was trying to impress me with his ability to be smarter than I was.
00:41:04.500 | And he confessed.
00:41:06.740 | So people are inherently stupid, especially criminals.
00:41:12.100 | And don't get me wrong.
00:41:13.100 | There are some very intelligent criminals out there.
00:41:16.020 | And most of them work in really big office buildings and wear suits.
00:41:20.740 | Yep.
00:41:22.540 | She went to jail.
00:41:23.540 | Is she hurting?
00:41:24.540 | No.
00:41:25.720 | But there are some very intelligent street criminals out there as well that get other
00:41:28.700 | people to do their bidding and so forth and so on.
00:41:31.860 | And people are afraid to turn on them.
00:41:33.460 | But there are some very foolish people.
00:41:36.940 | Just a couple other things.
00:41:39.300 | I do a thing usually with younger people, usually between the age of -- I try not to
00:41:44.620 | deal too much with juveniles -- but between the age of 16 and 25 is once they've talked
00:41:50.780 | to me -- now, let's back up a little bit.
00:41:54.660 | You don't need a recording in court for a statement.
00:41:57.540 | Like Professor Duane said, it's his word against my word if he was a defendant.
00:42:03.820 | Number one -- and this is the way it works.
00:42:06.780 | And this is the way the real world works.
00:42:08.660 | In case you guys haven't been out there, that's outside the windows out there.
00:42:13.040 | The jury looks at a defendant sitting next to a defense attorney.
00:42:18.140 | That's strike one.
00:42:19.820 | Because the jury's already looking at that as that being someone who did something that
00:42:23.780 | put them in that chair.
00:42:26.020 | Number two, they get a uniformed police officer up there.
00:42:29.140 | They get someone wearing a suit as a detective up there that is a professional witness.
00:42:35.060 | That's strike two.
00:42:36.940 | So now they have a professional witness against them.
00:42:40.200 | And then if they've confessed, and that professional witness is going to sit there and read from
00:42:43.500 | his or her notes the confession, that's strike three.
00:42:47.820 | Go get your orange jumpsuit.
00:42:49.700 | Do not pass go.
00:42:50.700 | Do not collect $200.
00:42:52.380 | So they have all those strikes against them.
00:42:53.780 | I know you're innocent until proven guilty, but it's a jury of your peers.
00:42:58.500 | And the perception is if you're sitting next to a defense attorney, you have to prove you're
00:43:01.900 | innocent.
00:43:03.300 | And that's just the perception of a lot of the jury.
00:43:05.940 | No matter how many jury instructions they get, they still perceive that person is a
00:43:09.900 | hoodlum, is a criminal.
00:43:12.740 | And no matter how hard some defense attorneys try to put their clients in suits and have
00:43:16.740 | them sit up at the table, if the trial's a long trial, they fall back to their old ways.
00:43:23.540 | And they start acting and speaking in a way that's not very good for their case.
00:43:29.740 | So saying that, you don't have to have a recording.
00:43:32.540 | My suppression hearing, a statement was trying to be suppressed because when I record a confession
00:43:38.580 | or an interview, because we don't do interrogations, the police, we do not do interrogations.
00:43:44.180 | That's a bad, mean, Nazi kind of word, okay?
00:43:48.060 | We do interviews, okay?
00:43:50.180 | And you'd be amazed how much difference it makes when you use that one word versus interrogation.
00:43:57.020 | I'll take it off the tape and I'll have my secretary put it to paper.
00:44:02.300 | Immediately afterwards, I'll take that tape and I'll scan it over my magnet, throw it
00:44:06.220 | in my box so I can use it again.
00:44:08.260 | I do not keep the tape.
00:44:09.260 | It is not evidence.
00:44:10.400 | It's not required to be evidence.
00:44:12.700 | It is there.
00:44:14.040 | If it's there for the court, it's just extra.
00:44:17.220 | You don't have to have that, but it's really good to have.
00:44:20.780 | The suppression hearing, he tried to suppress that.
00:44:22.660 | After I testified, the defense counsel stood up and says, "Well, Judge, I really don't
00:44:26.780 | have anything to say."
00:44:27.780 | And the judge, Judge Canada, said, "Motion denied, and let's move on and go to court."
00:44:32.700 | So you don't have to have recordings.
00:44:33.820 | You don't have to have videotapes.
00:44:35.020 | The police videotapes, that's just extra.
00:44:37.260 | If you got that police officer sitting there testifying, you don't have to have that videotape.
00:44:40.180 | You got the guy that was right there to tell you what happened.
00:44:43.780 | But it's always nice to have those extra things.
00:44:45.820 | And what I do for these young people is I'll say, "Look, the person who you broke into
00:44:51.620 | their house are very upset.
00:44:53.380 | They're very angry because you sold their stuff to the pawn shop.
00:44:55.860 | Pawn shop stuff, sold them.
00:44:57.420 | They don't get their stuff back.
00:44:59.180 | They're very angry.
00:45:00.540 | They want you to go to prison.
00:45:03.780 | They may be very angry.
00:45:05.580 | They want you to go to prison.
00:45:07.000 | They may want to.
00:45:08.460 | To lessen that, that's the start of what's commonly known as a lie because we are allowed
00:45:14.460 | to lie in interviews.
00:45:16.100 | To lessen that, you might want to make them happy.
00:45:18.700 | And the reason that's a lie is because when it is a felony in the Commonwealth of Virginia,
00:45:22.780 | the victim has nothing to do with the prosecution or how long the people go to prison or any
00:45:25.860 | of that kind of stuff.
00:45:27.820 | We're prosecuting them, not the victim.
00:45:30.740 | But to lessen that, what I'd like you to do is write an apology letter to the person whose
00:45:36.220 | house you broke into.
00:45:39.140 | Just write it out.
00:45:40.140 | Well, how do I write it?
00:45:41.140 | In your own words, just write, "I'm sorry for what I did," then say that, "When I broke
00:45:45.860 | into your house the other night," whatever.
00:45:49.580 | They write it out.
00:45:50.880 | They sign it.
00:45:51.940 | I sign it as a witness.
00:45:52.940 | I put the date and the time that it was written.
00:45:55.140 | I give it to the Commonwealth's attorney.
00:45:56.500 | It's entered as evidence as a written confession in the person's own handwriting.
00:46:02.700 | I don't type it up again and have them sign it.
00:46:05.100 | In their handwriting, a written confession.
00:46:07.460 | Is that person going to get convicted?
00:46:09.780 | I have never seen them not get convicted on that, on an apology letter.
00:46:15.340 | So in support of Professor Duane, everything he says is right.
00:46:19.820 | That's what I do.
00:46:21.460 | Now, to take away the support, I don't try and send innocent people to jail.
00:46:27.420 | That's it.
00:46:28.420 | That's all I have.
00:46:29.420 | Any questions or anything like that?
00:46:31.420 | Sir?
00:46:32.420 | [INAUDIBLE]
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