Sage legal advice from law professor and LEO?

[Chris]

My TMPA card has a slew of numbers to call to get an attorney response to the scene if I'm ever involved in a shooting. I'm rather certain my co-workers are carrying the same or similar card. I can't say I'd recommend a citizen not exercise the same precautions I've undertaken. Just as I protect myself with a weapon, I protect myself with legal representation as well.

[srothstein]

I have to agree with Jbarn. I swore to uphold the Constitution and I spent many years teaching other officers the exact same thing. I understand how easy it is to misspeak and make statements that may seem right but are actually wrong and I think this is a case where that has happened.

A police officer's job is to SOLVE a crime. That means that the job is to make a solid case against the person who actually committed the crime and to do so while obeying the law and protecting everyone's rights. If the officer violates the suspect's rights, there is no case even if the suspect was in fact the guilty party. Therefore, the officer must protect the rights of the suspects and witnesses.

Now, I will freely admit that many of these rights are not as clear as some might wish. For example, the right to not speak to a police officer is not quite as absolute as many believe. You can even be forced to give information that is immediately necessary to save someone's life. And you can be talked into waiving your rights also. So, when a police officer wants to solve a crime, he may try to talk you into waiving your rights. But he SHOULD stop when there is a clear statement that you want to stand on your rights. But trying to talk you into waiving your rights may seem like he is against your rights. He is not, but I can see how it could seem that way.

So, I would ask, MarshalMatt, to please be a little more clear in your classes about what the officers are doing. They are protecting people's rights while trying to solve crimes. But, they will do their best to get you to waive your rights if they can.

[MarshalMatt]

I agree with everything you are saying and I don't think we have any disagreement. My statements were taken a bit out of context. My ONLY point is in the duty of solving a crime (and upholding constitutional rights) by the LEO, statements made can be misinterpreted, and as they flow up the chain of custody, can be used in a way which can disadvantage the "suspect." The LEO is a human being and can interpret events/statements in a way unintended by the person in custody. It can never be stressed enough for anyone suspected of a crime to let the professionals handle it and remain silent. I am crystal clear in my courses and that is to remain silent. Protecting one's individual rights trumps any attempt a LEO has in "solving" their crime. Through careful and professional law enforcement practices, the truth shall come out at trial. The suspect does not need to "muddy" the waters with statements which could jeopardize their rights. That is what I am stating, by nature it is an adversarial system. Again, for the third time, my intent was not to offend any LEO's and I am quite clear in class that I am pro LEO. If, as you state, you are more than happy for the suspect to waive their right to remain silent, I am very clear about what I tell students, don't allow that to happen! You can't on the one hand uphold a suspect rights and, on the other hand, lead them down the road to surrender those very rights. The Constitution and its subsequent interpretation by the courts was not meant to protect the thugs, it was designed to protect citizens wrongly accused of crimes. I put my faith and trust in LEOs as sworn officers to use best practices and put the criminals away.

[TomsTXCHL]

Yeah it's not necessarily the police we need to be concerned about; it's the LAWYERS! An attorney for the opposition can (and will) take anything you say or have done and twist it to their advantage.

A corollary to the rule of "never talk to police" may perhaps be "never trust an attorney not your own"!

[MarshalMatt]

Yeah it's not necessarily the police we need to be concerned about; it's the LAWYERS! An attorney for the opposition can (and will) take anything you say or have done and twist it to their advantage.

A corollary to the rule of "never talk to police" may perhaps be "never trust an attorney not your own"!

And that is why "tough on crime" is a good thing, BUT let the system work like is supposed to; namely the LEO's doing quality law enforcement evidence collection and then the DA (or grand jury) deciding to move forward or not. Don't give them anything not in the realm of normal, solid police work. DA's by nature are political creatures who are elected to be tough on crime and we have seen countless examples of overzealous prosecutors taking a seemingly innocuous statement or set of circumstances and using it against those accused of crimes. My great uncle was a former District Attorney in Alameda County, California right after WWII. This is before we had Miranda. He was "privy" to confessions which were essentially "extracted" from defendant's. Most people probably could give a care of those questionable law enforcement tactics against the thugs, BUT, what if that was you or me? I know many LEO's believe Miranda set back law enforcement a great deal, but in fact it just put the honus on LEO's to do their job professionally and ensured the "good guys" not be forced to confess to something they did not do. The Supreme Court has restricted Miranda to a great extent by ruling that passive expectation of a right to attorney is not enough. That is why you must make sure the LEO understands you are invoking your rights under Miranda (those cards handed out by [pre-paid legal] are good to have in your wallet). That is a good system because all citizens SHOULD know their legal rights and obligations, it keeps everyone playing by the rules. Miranda will really be a thing of the past because of all the ways in which "proof" of being Mirandized now takes place. It is now video taped a couple different times so that it is unimaginable that anyone could assert their rights were not read to them. The system we have, while not perfect, is pretty close if it is allowed to play itself through to a just conclusion. That is called justice...

[baldeagle]

I think Elvis' advice is wise. You should avoid admissions that might point toward guilt but provide enough information that the police have some reason to think you might have actually been justified in your actions. For example, "He jumped out of the bushes, pointed a gun at my head and demanded all my money. I distracted him, drew my weapon and fired. His gun is laying over there near the bush. I think I should probably get a lawyer at this point." Things like "I shot him three times because I wanted to make sure he wouldn't get back up" aren't going to help your case, even if you were justified. Anything that can provide doubt about your motives should be left out. Anything at all about motives, other than, "I was scared to death" or "He gave me no choice" should be left out. Don't volunteer extra detail. Just present the facts as you saw them, then invoke your right to an attorney before being questioned, and let the police sort it out.

[steveincowtown]

And you can be talked into waiving your rights also. So, when a police officer wants to solve a crime, he may try to talk you into waiving your rights. But he SHOULD stop when there is a clear statement that you want to stand on your rights. But trying to talk you into waiving your rights may seem like he is against your rights. He is not, but I can see how it could seem that way.

Not pointing the finger at you, but many LEOs take great offense when a citizen can't be talked into waiving their rights. As long as the LEO has no problem with me not waiving my rights, I have no problem with him trying to talk me into it.

The links from the OP no longer work, but it sounds like it may be this series:

[youtube]http://youtube.com/watch?v=i8z7NC5sgik[/youtube]

God forbid the day ever comes where I am involved in a shooting, but if it does what I say to the police will be very limited.

[MarshalMatt]

The very fact that any LEO would want to talk someone into waiving their rights is evidence on its face of the adversarial nature of the LEO/suspect encounter. What started this whole discussion (my first post in the thread) was when I said, "not necessarily to uphold your constitutional rights." That would be CORRECT! That got a couple torked out of shape re: their constitutionally sworn duty yadayada....I want to believe that LEO's are there for seeking truth and justice, BUT The LEO's job is to solve a crime, pure and simple. Their job is not to be your advocate. If anyone is really suggesting that it's the LEO's job to try to talk you out of remaining silent, then that underscores my point. I never said they are out to VIOLATE your rights, but they certainly are not there to put them above their investigation.

[The Annoyed Man]

The links from the OP no longer work, but it sounds like it may be this series:

[youtube]http://youtube.com/watch?v=i8z7NC5sgik[/youtube]

God forbid the day ever comes where I am involved in a shooting, but if it does what I say to the police will be very limited.

Here is the full length video below, with both the law professor and the LEO, and they are saying the same thing, just from the perspective of a defense attorney, and the perspective of the investigation/arresting officer. We all know what the attorney is going to say, but what the LEO says is particularly enlightening:

[youtube]http://youtube.com/watch?v=6wXkI4t7nuc[/youtube]

Carrying a pistol for self defense forces us to find balance in a lot of areas of our lives in which we did not have to think about it so much before we started carrying...... wardrobe choices for instance...... entertainment choices...... even the choice of friends, or of church..... and learning and internalizing what we should do if we are ever involved, heaven forbid, in a defensive shooting is part of learning a new balancing point.

I still view LEOs as my friend, generally speaking. But I also know and understand the crime-solving aspect of a cop's job; and why should I make it easier for him to automatically suspect me and concentrate solely on me, when it the whole thing is the fault of the guy I shot? I want to make it as easy as possible for the officer to draw the conclusion that this was a righteous shooting, but that may not be possible without incriminating myself, and self-incrimination is to be avoided at all costs, and I have a constitutional right not to be forced into self-incrimination. Furthermore, it may entirely be possible that the local prosecutor's office may have removed any discretion that police may have in deciding how to conduct their investigations, and in whether or not they HAVE to arrest or charge the shooter. Whatever the environment, they are just doing their job. My job in a self-defense scenario doesn't end after the BG is down or gone. It doesn't end until my legal disposition has been finally settled. As others have said, the nature of the investigation process is adversarial. It is my job to not give any LEO information that he can (and likely will) use against me. The way for me to accomplish that is by politely saying as little as possible, getting legal representation, and not giving any kind of statement until I have calmed down and my memory of the event is much more clear.

[scokill]

presentation - comes from an experienced police officer.

Both are rather lengthy, so broadband is recommended.

Do people still have dial up??

[WildBill]

Yeah it's not necessarily the police we need to be concerned about; it's the LAWYERS! An attorney for the opposition can (and will) take anything you say or have done and twist it to their advantage.

A corollary to the rule of "never talk to police" may perhaps be "never trust an attorney not your own"!

IMO, the best course of action is to follow the law.
That way you will minimize your contact with LEOs and lawyers.

[WildBill]

And that is why "tough on crime" is a good thing, BUT let the system work like is supposed to; namely the LEO's doing quality law enforcement evidence collection and then the DA (or grand jury) deciding to move forward or not. Don't give them anything not in the realm of normal, solid police work. DA's by nature are political creatures who are elected to be tough on crime and we have seen countless examples of overzealous prosecutors taking a seemingly innocuous statement or set of circumstances and using it against those accused of crimes. My great uncle was a former District Attorney in Alameda County, California right after WWII.

"Tough on Crime" may be a good slogan to run for District Attorney, but it isn't a "good thing" if the constitutional rights of the citizens are violated to promote that policy.

Richard Nixon used the slogan of "Law and Order" to proclaim the same views.

http://youtube.com/watch?v=u8N_9ei8ncg

Did your great Uncle work with Earl Warren? When Warren was Alameda County DA he used some of the same methods for prosecuting people that he declared unconstitutional when he was Supreme Court Justice.

[MarshalMatt]

Wild Bill, your history is very good, indeed. Again, I think you missed my point about "tough on crime." I want the criminals behind bars, but NOT at the expense of our constitutional rights. Earl Warren WAS my great uncle. Hence, that is where I get my interest and training in the law and most importantly, the Constitution. I come from a long lineage of lawyers and constitutional scholars. The fact is, Warren saw the excesses of "vigorous" policing and when he got to the court pledged that in the United States, we are beyond using any tactics which would tread on our most cherished constitutional rights. He was also the man who walked in only to find his father slaughtered by a bunch of thugs in Bakersfield. If anyone had a right to hate thuggery, it would be my great uncle. BUT, he did not lead the coalitions in Miranda and other landmark cases to protect the criminals, he did it because in a decent society, ALL of our rights must be affirmed. Again, it comes back to, "what if that were you or me being accused of a crime?" In other words, Miranda and other civil liberty cases were about protecting citizens who find themselves in that unfortunate underdog position of potentially having their liberty taken away by the state that has all the power and resources at their disposal. It was not Warren doing the "roughing up" but there is no doubt he used the fruits of those interrogations (and that is what they were then, interrogations) to indict and try many accused.

[WildBill]

Wild Bill, your history is very good, indeed. Earl Warren was my great uncle. Hence, that is where I get my interest and training in the law and most importantly, the Constitution. I come from a long lineage of lawyers and constitutional scholars. The fact is, Warren saw the excesses of "vigorous" policing and when he got to the court pledged that in the United States, we are beyond using any tactics which would tread on our most cherished constitutional rights. He was also the man who walked in only to find his father slaughtered by a bunch of thugs in Bakersfield. If anyone had a right to hate thuggery, it would be my great uncle. BUT, he did not lead the coalitions in Miranda and other landmark cases to protect the criminals, he did it because in a decent society, ALL of our rights must be affirmed. Again, it comes back to, "what if that were you or me being accused of a crime?" In other words, Miranda and other civil liberty cases were about protecting citizens who find themselves in that unfortunate underdog position of potentially having their liberty taken away by the state that has all the power and resources at their disposal.

I have read two Earl Warren biographies and well as other books discussing Supreme Court cases and decisions. I have a few posts on the forum that talk about these landmark decisions.

[MarshalMatt]

Unfortunately for me, he passed away when I was 10 years old. I was at his memorial service at the Court and sitting kitty corner to me was then, President Nixon. Though I met him on two occassions, I was really too young to appreciate the part he played in US jurisprudence. I probably would have given body parts to be able to interview him when I got to grad school. My brother went to Santa Clara University school of law and got a letter of reference from him. It did not come as a given, however. My brother recalls that "Unc" wanted to talk with him re: his decision to enter the law and wanted my brother's word that is what HE WANTED to do. Nephew or not, he was not going to give a reference "just because"...did not believe in nepotism, but was glad to help. I kept in contact with his widow, Nina, throughout my grad school years. I even had some of my graduate work reviewed by Justice William Brennan, Jr., Warren's "capable lieutenant." Much of my research was on the Warren court and the impact it had on judicial policy-making. Brennan wrote a letter to me that I have in my office congratulating me on "a very thorough and accurate account - a splendid job!" You can see why I am such a nut about this stuff....LOL!