Transcript for:
Law School Experience and the Fifth Amendment

I was invited to give you a taste of a typical law school classroom experience here today and I thought I would take advantage of this opportunity to do something guys it's been on my mind for a while to stand up and to proudly say god Bless America god bless the Bill of Rights and thank God for the fifth amendment I'm not ashamed to say I'm proud of the fifth amendment and I'm not I'm proud to admit on camera and on the internet that I will never talk to any police officer under any circumstances with all due respect sir I'm doing something really extraordinary here today something you'll almost never see another law professor do as long as you live I'm really putting myself on the spot here at my even this was my idea by my invitation I have given up half of my time approximately I'm giving equal time and the last word to an expert who really knows something about what I'll be talking about so I'm opening myself up to the possibility that he will contradict me I was a criminal defense attorney when I was in private practice so I wanna make sure in fairness to you if I misleading you were giving you a slanted or one-sided presentation you'll be able to get the last word from somebody else I'm sure he'll have a lot to teach all of us including myself the Fifth Amendment to the United States Constitution provides no person shall be compelled in any criminal case to be a witness against himself and this unfortunate amendment has gotten a bad rep in in recent times much of it tragically and unnecessarily through as you may have heard the headlines let me read you something that was taken out of the newspaper this morning and I want you to listen to it closely and I'm giving you heads up I'm warning you in advance which is not fair to you not fair to me but I'm giving you a head I'm giving you a warning that I'll be quizzing you on this in just a few minutes this will test your aptitude for legal study and legal practice listen closely it won't take long last night agents of the Norfolk Police Department found three victims of an apparent murder dead in an apartment in the East ocean view area the apparent victims of a gangland-style slaying and possibly the victims of gang-related violence the police are investigating this as a possible murder and suicide but right now suspect that the three were all killed by the same individual no suspects have yet been identified in the slain but veteran police detective George Brooke has confirmed the police are following up on evidence pointing to the possible involvement of an off-duty naval officer as the perpetrator the bodies which were found by the apartment manager at about 8 o'clock in the morning appeared to have been slain sometime earlier in the same evening probably sometime between midnight and 2:00 o'clock in the morning that's it those are all the facts I'll ask you to remember and it won't be for very long either let's see how well you do I'll be quizzing you in just a few minutes now here's the easiest question you'll ever get from a client in all the days of your life question hey the police are here they want to talk to me what should I do well I could give you my answer to that question in case you haven't already guessed it but why don't we go to a real expert just as Robert Jackson a prosecutors prosecutor like me he began his private practice in Buffalo New York years before I did and after that he served as general counsel for the Bureau of Internal Revenue the US Department of Treasury the securing the Exchange Commission Assistant US Attorney General for the tax division later the Solicitor General and the Attorney General of the United States and then the chief he was prosecuted for the Nuremberg trials that's an impressive resume years later when he was a justice on the Supreme Court justice Jackson stated quote any lawyer worth his salt today we would say his or her will tell the suspect his client in no uncertain terms to make no statement to the police under any circumstances there's the title of my talk I'm here to explain you the surprising and somewhat counterintuitive and admittedly unlikely reasons why justice Jackson was right I'm reminded of this because I'm amazed we're all amazed by the frequency with which we see newspaper articles coming on all the time from people who really ought to know better who stay well I'll talk to the police I mean after all I'm I'm a senator I'm AJ Simpson I'm I'm an experienced highly polished individual eigvals got a lot of experience with public relations even criminal defense attorneys there was a local news story here in the virginian-pilot just a couple of months ago about experienced criminal defense lawyer who ended up getting convicted of criminal assault because he talked to the police he was accused of having assaulted another attorney in the hallway there were no other witnesses to this a woman said that he grabbed her by the throat during an argument over a case he denied it at trial was his word against hers he said I did not even touch her but unfortunately for him when the police had approached him earlier and said would you be willing to answer some questions he said sure why not I'm a I'm an attorney I'm a criminal defense attorney I'm savvy I'm sophisticated I've got oratorical prowess I'm I'm accustomed to dealing with the police by all means and then there was a conversation that was not recorded when the case went to trial it was no longer his word against hers because when he testified the trial I never touched her the officer took to the stand and testified well when I met with he said he did put his hand on her throat but just as a joke then he had to take the stand again and say that's not true I never said that I never admitted to you that I now it's his word against two people who's telling the truth we'll never know for sure but he was found guilty now here's part of the problem the heart of the problem as justice breyer on the US Supreme Court explained in 1998 is quote the complexity of modern federal criminal law codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law make it difficult for anyone to know in advance just when a particular substr statements might later appear to a prosecutor to be relevant to some investigation one expert on criminal law recently noted that estimates of the current size of the body of federal criminal law vary although it has been reported that the Congressional Research Service can no longer even count the current number of federal crimes that's right even the federal government has lost count these laws are scheduled over all 50 pages of the US Code encompassing roughly 27,000 pages worse yet these statutes often incorporate by reference for the provisions of administrative regulations estimates of how many such regulations exist are even less well settled although the ABA thinks there may be nearly 10,000 here's one of those 10,000 federal criminal statutes on the book that you probably never heard about it's called the Lacey Act 16 USC section 33 70 says it's a federal offense for any person to import export transport sell receive acquire or purchase any fish or wildlife or plant taken possessed transported or sold in the violation of any law treaty or regulation of the United States or any Indian tribal law or any state or any foreign law people have been convicted in federal court for violating the statute because they brought back a bony fish from Honduras not knowing that Honduran law not American but Honduran law forbade the possession of the bony fish people have been convicted under the lists law because they were found in possession of a what's called a short Lobster elapsed have is under a certain size some states prevent you from possessing the lobster if he's under a certain length it doesn't matter if he's dead or alive it doesn't matter if you killed it or if you died of natural causes it doesn't even matter if you acted in self-defense did you know that there do now it can be a federal offense to be in possession of a lobster admit it raise you hand if you did not know bad there's the problem and that's only one of 10,000 different ways you know the government gets pretty upset when people like me instructs the client people like me and justice Jackson don't talk to the police don't answer any questions but you know they can't have it both ways you people you've got 10,000 different ways of convicting us good for you but you know with the bitter comes to the sweet with the good comes to the band that's ten thousand different ways my client might unknowingly implicate himself in some sort of a criminal transaction one of the reasons I decided to give this talk I recently received a phone call from a former student of mine a regional law school graduate who may be watching this online we're putting it on the Internet and he told me hey I've been approached by the Internal Revenue Service they want to ask me a couple of questions they asked if I don't be willing to but they say that I'm not a suspect and I know I'm my heart I don't think I've done anything wrong and violation of the Internal Revenue Service provisions lord have mercy there's no man on earth those no there's no woman in this country who can honestly say with complete confidence I know I have never violated any provision of the Internal Revenue Code he said but but they say I'm not a suspect and I know I've done nothing wrong it's okay if I talk to him I said no no you tell them you will not talk to them without immunity I explained to him why that was true and they never he never heard from them again okay why you should never talk to the police let me just spell it out for you let me make it plain to all of you these are the top 10 reasons I I don't actually really you lie to you I don't really have ten I don't I'm for ten but I've got time for eight and that'll be close enough number one and this really ought to be good enough contrary to what you laymen instinctively naturally supposed it can not help there is no way it can help you plenty of folks think that I can and they're always wrong you cannot talk your way out of getting arrested officer Brooke you've interviewed thousands of criminal suspects have you ever how many times in your experience have you approached someone asked if you could ask them some questions because prior to the interview you had some evidence pointing to as possible guilt and because of the extraordinary persuasiveness and eloquence with which he articulated his innocence you setup sorry nevermind bank all my bad I won't and you he talked you out of arresting him never never it never happens I've often asked other criminal defense attorneys and all of your experience have you ever once hit a case where you looked back in hindsight and said thank God my client talked to the police they laugh at me they laugh at me they say you've got to be kidding me you cannot help you you can't talk your way of getting arrested and contrary to what you might suppose if you never said to the Rules of Evidence what you tell the police even if it's exculpatory cannot be used to help you a trial because it's what we call hearsay under Rules of Evidence specifically rule 801 d-2 a if you want to look it up everything you tell the police as the saying goes can and will be used against you but it cannot be used for you from time to time I've known attorneys who tried to call to the stand a police officer and say officer would you tell the jury what my client told you because what my client told him was actually good for my case if you tried that at trial the prosecutor will object that is hearsay and the judge will agree the police will not be allowed and your request to tell the jury what your client told him no matter how good it may be for your case it cannot help and that ought to be good enough reason that ought to be reason enough to keep your mouth shut but if you're not persuaded let me go talk about a couple of others number two obviously one of the most obvious if your client is guilty as many of them are but even if he's not even if he's innocent he may well admit his guilt with no benefit in return now of course many of you are thinking to yourself what's so wrong about that I mean shouldn't guilty people be confessing confessions good for the soul it's good for law enforcement it's good for the prisons yes yeah sure all those things are true and liked the rest of you if I or anyone close to me is ever the victim of some sort of a serious crime I hope they get the right guy I hope they convict him I hope they put him away we all feel that way hey but what's for the rush friends you don't go to admit your guilt the first time they come by to meet with you in federal court 84-68 II 6% of all defendants plead guilty at some point before trial if your client is guilty and really ought to punish and really gotta have a go through some sort of a cleansing act of contrition fess up and admit his guilt there'll be plenty of time to do that they almost always do no need to rush no need to tell the police something wait and see if we perhaps your client can't work out some sort of an arrangement where maybe he'll make some sort of compensation to the alleged victim or maybe he'll be able to get some sort of a discount in his sentence and he'll be able to treat it'll be treated fairly then like everybody else who had the benefit of a good lawyer who said please do not talk to the police and don't forget by the way even if even if your client only admits things that the police already knew you might think well what harm can it do he says he wants to talk to the police all he wants to do is admit that he was there but the cops know that he was there alright go ahead and tell him well how can I hurt it might hurt if the police officer becomes transferred to Minnesota or deceased or injured or comatose or cannot be located by the time of trial the case will be dismissed if there's no confession but if your client admits to things that's confession is freely admissible against him it can be a basis for getting him convicted all himself Senator Larry Craig can explain all this to you the Innocence Project of the United States has confirmed that in more than 25% of all the cases where an innocent man was convicted and then later released from prison after he was exonerated by DNA of us and more than a quarter of those cases these innocent people people we know to be innocent made incriminated statements delivered outright confessions or pled guilty how do they do that he'll tell us all about it I'm trust here's a couple of famous examples you can just ask them you don't have to take my word for it they are on the left with Eddie Joe Lloyd he was convicted in 1984 of the murder of a 16 year old girl in Detroit after he wrote to police with suggestions on how to solve arias recent crimes during several interviews police fed details of the crime to mr. Lloyd who was mentally ill and they lied to him and convinced to this mentally ill man that by confessing he might help them smoke out the real killer he later signed a confession it gave a tape-recorded statement the jury delivered in less than one hour before convicting him on the basis of this confession there was no other substantial evidence against him the judge said I'd hang you if I could but the death penalty was not available in Michigan at the time but after almost two decades in prison he was released after DNA evidence proved that this man was innocent and that falsely committed confessed to a crime that he did not commit on the right as Earl Washington who was released from prison just a few years ago here in Virginia after spending 18 years behind bars for a cook after being committed of a rape and a murder that we now know he did not commit after having been exonerated by DNA evidence but be this man mr. Washington who was in fact confirmed to be mentally [ __ ] was able to confess to several crimes at the request of the police some of which we know he could not have committed that's the problem some of you are thinking to yourself well none of this concerns me because I'm not guilty of anything and I never will be and I will never represent people who do okay let's talk to you people you innocent folks those of you who have never committed a crime and never will in none of your clients will either and no and you wouldn't go out with a girl who did fine you better not talk to the police either okay because number three well put the guilty behind us forget about them let's talk about innocent people number three even if your client is innocent and he denies his guilt and almost entirely tells the truth odds are good he will easily get carried away and tell some little lie or make some little mistake that will hang him this is human nature you get in there it's a stressful situation imagine a perfectly innocent client the police say he's been guilty of a murder he's totally innocent as innocent as any one of us so he goes in there he meets with the police he says I don't know what you're talking about I was nowhere near there I I I didn't kill him I've never killed anybody I don't have a gun I've never had a gun I've never touched a gun in my life I was nowhere near Virginia Beach that like then let naik up and that last line was a lie he went over the top he was getting carried away he guided into this groove he started seeing all kinds of things almost all of them true that he knew would tend to exculpate himself then he got carried away he just said one thing that wasn't true and unfortunately for him they can prove that it wasn't true he may be convicted on that basis alone but let's say to you let's say well let's not a problem I'll tell my client only to tell the truth I've met with him I know he won't lie to the police he won't make any mistakes okay that's still no guarantee you won't be getting into trouble because even if your client is innocent and only tells the truth and doesn't say anything that is false now already would mind you were pretty well nigh into Fantasyland the odds of this being anybody being able to pull this off are really quite slim no matter how innocent they may be but just do the same let's pretend let's assume he gives the police nothing but the truth and he is totally innocent he will always give the police some information that can be used to help convict him always for example suppose you tell this to the police here's what your client tells to the police in his denial of guilt I don't know what you're talking about I would I didn't kill Jones I don't know who did I wasn't anywhere near that place I don't have a gun I've never owned a gun in my life I don't even know how to use a gun yeah sure I never like the guy but who did I wouldn't kill him I've never heard anybody in my life and I would never do such a thing let's suppose every word of that is true 100% of it is true what will the jury hear at trial officer broke was there anything about this your interrogation your interview with the suspect that made you concerned that he might be the right one yes there was he confessed to me that he never liked the guy and then the prosecutor put that up in big letters and he'll say ladies and gentle degree it's pretty clear that we've got the right guy here we've proven that he was in Virginia Beach that night that's opportunity and remember officer brouk admitted that after extended question he was finally able to get the defendant to admit that he never liked the guy there's your motive motive plus opportunity wham bam please but juries eat it up and innocent people get convicted to this way sometimes how often hopefully not too often but we know what happens the United States Supreme Court don't take my word for this in Ohio versus Ryan of the Supreme Court of the United States said quote one of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances truthful responses of an innocent witness as well as those of a wrongdoer may provide the government with incriminating evidence from the speaker's own mouth see it's not just some criminal defense attorney telling you this even the Supreme Court says I'm right in the fact under the facts of that case by the way in Ohio vs. Reiner a child tragically was died apparently the result of shaken baby syndrome question was who had shaken this baby to death and one of the possible suspects was a babysitter who had spent some time with the child that week the babysitter's story was I I don't know what you're talking about I did not kill the child I don't see I did not to get heaven I don't know who shook the baby it was never me I never did anything of any violent nature to the child the Ohio State Court said well you've got no Fifth Amendment privilege you would by your own admission told the investigators that you've done nothing wrong that you were not involved so obviously your answers can't incriminate you the United States Supreme Court reversed and said well that's not true even though they chucked this babysitter denies shaking the child denies seeing the child died and I know he denies knowing how the child died this babysitter by her own admission apparently was being was that the government wanted to ask whether the babysitter might have been with the child at some point that week during the week prior to the death and that answer although but by itself not sufficient to convict anybody could help convict her that me she's got a Fifth Amendment right to have refused to answer to the question the court held because it could be used to help convict Allman versus United States the Supreme Court said more than 50 years ago eerily prophetic they said to many Americans even those who should be better advised view this privilege as a shelter for wrongdoers they too readily assumed that those who invoke it are either guilty of crime or commit perjury and claiming the privilege that's not true and it never has been but it gets worse Kenny favors it can number 5 even if your client is innocent and only tells of the truth and does not tell the police anything incriminating which by the way is almost impossible to pull this off I mean imagine talking to the police for two three four hours and and somebody like him can't somehow managed to extract from you is something that could be used to help convict you there to be extraordinary think anybody's pulled it up but what even if you could pull it off there's still a grave chance that his answers can and will be used to crucify you in a court of law if the police no offense don't recall his testimony with 100% accuracy all right now this brings us back to that pop quiz I warned you about I told you earlier remember [ __ ] it's only been a few minutes and you weren't up all night and you were at the subject of physical duress you were in the relaxed setting of a classroom here you were given heads-up advanced notice that you would be quizzed on this question we'll start with a couple of easy ones remember that article I read you about that how many people did the police find shot to death last night at that oceanview apartment that I told you about a1 b2 c3 d4 who says a b c get this so get there with a camera show get move that camera look how many hands we've got there for C ok D you're all wrong everybody who raised their hand everybody who raised their hand you are the kind of people who should never talk to the police under any circumstances or as long as you live why is C not the right answer by the way if you know raise your hand yes excellent I didn't say anybody was shot I didn't say gun bullet shooting firearms didn't use any of those words but I don't blame you if you thought that I did this is the way the human mind works we hear things we fill in details I said gangland style slang that may or may not apply something but it doesn't mean that anybody was shot and that's the problem you see even if your client is innocent and only tells the truth and doesn't tell them anything incriminating and his statement is videotaped his answers can be used to crucify him you might say wait how can that happen I insisted in my insistence I called the police and I said look at you want to talk to my client you can talk to him but only if you finish yet the whole thing I don't want there to be any debate between the two of you over what happened okay well the videotape the whole thing if the police don't recall their questions with 100% accuracy he'll be convicted on that statement alone for example suppose a man goes to the police they say we're investigating a possible murder a shooting and the guy says quote I don't know who killed Jones officer Brooke with all due respect I it wasn't me I've never touched a fired a gun in my life how can that help incriminates man how could they possibly be used against this man to help convict him you think it's inconceivable but it's as easy as pie all the officer has to do is read this statement to the jury and then the prosecutor says officer proof was there anything about that statement that confused you or surprised you yes there was he says in a moment of sinister high drama in the courtroom and what was that and then obviously Brooke turned to the jurors and he says I never said anything about a shooting I said we were investigating a murder he was the one who brought up a gun then you turn to your client your client says that's not true that's not true I remember he was the one or one of the cops I was with him for three hours one of them in the car said something about they said they had a witness that I was the shooter okay I'll put you on the stand and then your client testifies no no no they did tell me shooting I mentioned they mentioned before I said anything about a gun they brought it up first and then the police said that's not true and now what it's your word against theirs for what you're gambling with your clients life and police officers can very easily make a mistake like that just as so many of you did just a few minutes ago about whether you recall having heard me say something about somebody actually being shot police make mistakes innocently inadvertently unintentionally any statement no matter how exco pictorially may seem on its face can be used to crucify you all by itself if the police are either willing to lie not likely or if they just have a innocent Mis recollection of the details as to what they did and did not tell you before you told them what you said all of these by the way all of these problems disappear if you take justice Jackson's advice and say thank you very much opposite by no thanks how about this one here we go now here's the most surprising of all I've saved the most surprising one for a last let's suppose you've got the following scenario your client thinking about talking to the police he acts like he says I've got nothing to hide they think that I killed somebody in Virginia Beach last night well weary and this is what and this is what your client tells you in confidence I don't know who robbed that store it wasn't me in fact I've got a pretty good alibi I wasn't even in Virginia Beach that night last night I was four hours away visiting my mother in the Outer Banks unfortunately no I did not pay for guests with a credit card I used cash and so I've got no witnesses that can prove I was there except my word and of course mama for what that's worth which is nothing but so your client says let's so the police want to talk to me and I want to seem cooperative so what I'll do is I'll tell them that I was in the Outer Banks last night no there's nothing on its face incriminating about any of that let's assume by the way that you will believe with all your doubt you've given your client a polygraph exam you've known him for years you've been going to the same Bible study for 30 years you know beyond a shadow of a doubt that he's telling you the truth and he's not admitting anything he's not admitting motive he's not admitting opportunity he's not admitting that he was there how on earth could this come back to haunt us how on earth could this come back to be used against us be honest raise your hand if you really think the answer to that question is I can't see how it could possibly be used against me you're afraid I'll calling you right now I won't call on you well you're wrong you're dead wrong you're always wrong everything you say every time you talk to the police you will regret it you see the problem is here it is this is the last point I think it's almost willing even if your client is innocent and only tells the truth and doesn't tell the police anything incriminating and the entire interview questions and answers are videotape you're even his truthful answers can be helped to use crucify even an innocent man if the police through no fault of theirs end up in the possession of any evidence even mistaken and unreliable evidence that anything your client told them was false even if in fact it was true again going back to this example from a moment ago let's suppose I tell I go ahead and I meet with the police I got think I got nothing to hide I tell them I was in the Outer Banks last night officer how can it be used to convict me by itself it cannot it cannot help at all by itself but what if I later find out to my horror after I put my cards on the table that they've got a witness a girl that I went to high school with and on a peach of a witness we've never been enemies she'd have no reason to lie she swears she thinks she saw me in Virginia Beach last night a couple of blocks away from that store about an hour before it was robbed now her testimony by itself isn't going to help the prosecutor help if she's all they've got I'll get this case thrown out before a trial but it's like an idiot I talked to the police and I told them the truth I told them I was in the Outer Banks and now a lo and behold tragically it turns out they've got a witness a false mistake and confused but sincere incredible witness who could testify that I was here at Virginia Beach now they're lucky to get a conviction because what they'll do I've just turned this cop and this woman into the government's star witness they'll put her held up put officer Brooke on to testify about how my client lied to him about being in the Outer Banks and then they'll put on this girl this the girl who otherwise would have not even helped with the case at all who will testify no that's not true that was a lie I saw mr. Dwayne's client here in Virginia an hour before the robbery not so far from the store by herself she would not have helped the government in any significant way but what I have just done you see is given them the other part of the puzzle and now I'm doomed just asked them I close I close with this example here we have a couple of recent celebrity examples of aya dish that even people who admit nothing always end up a denying it I mean sorry they always didn't end up regretting it on the Left we have Martha Stewart she was the victim the subject of an extensive government investigation that was looking into the possibility that she was guilty of violations of certain federal laws securities laws fraud kinds of things they couldn't pin that on her but they were able to in a conviction because she denied it talking to the police and leading someone for shareholders she said no it's not true I was not guilty so they charged with lying to federal investigators and they got a conviction and she was sentence to five months in prison Marion Jones on the right side another person who would still be out today if she had always taken the advice that I'm giving you now she was asked if she had ever used his steroids a controlled substance and instead of taking the fifth she said no I never took steroids when I won those Olympic gold medals later on it turned out that she was lying she worked out a blue deal so you pled guilty she admitted that she was lying and she over her strenuous tear-filled objection even though she has two young children was just recently sentenced to prison for six months the guy who sold her the stare rights the pusher he got only four months but she got six months because she lied to the police and said that she did not do it you see the problem Michael Vick who originally pled guilty as you know to these charges with respect to the operation of this dog combat sort of operation at his home at sentencing like many other criminal defendants even though he eventually pled guilty at sentencing one of the things that one of the reasons his sentence was a little harder than it might have otherwise been the judge said was because when he initially met with the police he lived them said I didn't do anything I didn't do it I don't know what you're talking about even guilty people but not only guilty people will always end up regretting talking to the police so my advice to you justice Jackson was right any sane competent lawyer in his right mind will always tell every client under all circumstances I don't care if you're innocent I don't care if it's the truth if it's the truth great we'll tell the jury all about it there'll be time enough to put our cards from the table but before we get there I haven't seen yet what the police got they may have missed and Confused witnesses who will contradict even the truthful stuff that you say we have no way to know no way to predict whether the information that you give them even if truthful and reliable will end up unwittingly dispelling our demise so keep your mouth shut don't answer any questions let's take the fifth you'll be glad that you did god Bless America god bless the blessed the Bill of Rights and the geniuses who bequeathed it to us but now in fairness I give equal time or what's left of equal time to a police officer who will explain to the extent to which if any he agrees or disagrees with anything I've got to say I didn't I have no idea to know what he's going to say but it'll be interesting here let me get in the microphone get let's give the hand off of the tourist group the Virginia Beach Police Department I cannot talk that fast not even interviewing I'm gonna take the podium here professor cuz I took notes on some of the things you said and everything he said was true okay and it was right and it was correct and I'm just gonna give you a few ideas I'm gonna tell you a few examples but first I'm gonna give you a little information as was said earlier I've interviewed thousands of people I've interviewed people with foreign Police Department's when I was in the Navy I was in law enforcement and I was a criminal investigator thank God we're in the United States because most interviews and Italy Spain and so forth start out physically okay there's no police police abuse over there they can do pretty much what they want any time they want any how they want so just be aware of that and be thankful for yet biggest question I was asked when I first I am a 3l and there's some of my classmates in here best days coming up May 10th when we get to leave so those of you that are applying and I told a couple of people this you think it's hard getting into law school try getting out okay couple of things I was asked how do I quit from getting speeding tickets very easy question quit speeding okay but something professor Duane brought up are any of you guilty of anything how many of you drove here today anybody go above fifty five on the interstate anybody drive at home and go above fifty five on the interstate because if you if you stake and there and there you go and people are inherently honest and that's their biggest downfall okay they really are or they want to tell their story and if you drive 55 on the interstate where it's 55 the only thing you're gonna do is meet the person behind you because they're gonna rear-engine you're gonna get run over okay so that's a fact but everybody does something that they can get in trouble for I can follow as a police officer I was uniformed I could follow a car however long I needed to and eventually they're gonna do something illegal and I can pull them over and justifiably illegal to pull them over so just be aware of that don't don't think you're so innocent in such a thing when you get stopped for a traffic ticket everyone likes to be somewhat honest and what's the first thing the police officer asked you do you know how fast you're going if the speed limits 35 you'll say oh 38 40 because you want to be kind of honest even though you're doing 50 you just said 38 40 you just admitted to breaking the law you just confessed so they can go to court with that with a confession then you're exceeding the speed limit okay so think you need to think about those things and when you do become defense attorneys which I may who knows you need to think about those things for your clients the other thing you need to think about your clients and this is gonna seem very terse people are stupid your clients are stupid and I've had defense attorneys come to me matter of fact one on a motion to suppress just Tuesday come up to me and tell me his client was stupid okay they're very straightforward they do foolish things they talk to the police you got you guys need to be aware of that now in my past and it wasn't exaggerated I have interviewed thousands of people I have a I've arrested and dealt with over a thousand felony well actually more than a thousand felonies probably got 20 car yeah about a thousand fellows 2,500 misdemeanors 98% of a conviction rate eighty percent of them I don't even have to go to court why because there's confessions because they confess so these people have no problem the hardened criminals have no problem talking to the police people like to tell their story and they'll sit in that room and think about it you're picked up by the police you're in a little room there's one chair here there's a desk there's another chair what's the thing you want the most right at that point to get out of that room to be out of that room I think the police officers police officers shift is ending in 15 minutes does the police officer want to get out of that room my overtime rates 58 dollars an hour do I want to get out of that room I have no problem I'll stay there for 10 hours I'll say I'll take that $600 okay so I have no motivation to want to leave you do and that's that's how we get you to try to talk I have my job my job is to develop probable cause develop a good case a great case is a case with a confession get it to the Commonwealth's Attorney so that they can prosecute the case with little if any effort and the Commonwealth Attorney's love those cases the little inny in the effort because they come with a stack of files that high in court every day so they love those cases that's my job the defense attorneys job is to hope they get to their client before I do and make sure they don't talk to me no matter what give you an example and this will go right along with what Professor Glenn was putting up his examples I had an interview that went something like this were you involved in the burglaries no I had nothing to do with them you didn't have anything to do it no you were in a car with all this stolen stuff in it yeah nothing do about know you knew it was there yeah okay now we got possession of stolen property felony okay but you had nothing to do with it no so what did you need the money for I had to pay some of my court costs from another thing I got in trouble for oh so he took the money from stealing the stuff I have enough to charge him now with burglary simple as that would you see the picture on that camera of the house with the Christmas decorations this is a real case scenario yeah did you go in that house no I didn't go into that one so there's ways around it there's ways to get around people who try not to talk to you and again as Professor Dwayne said if you wanted to go and say you wanted to go into a boxing match hundred dollars if you win you've never box before you have to face somebody who's an Olympic boxer you're going to lose you're gonna face somebody who's been interviewing people for in my case twenty eight years they're going to lose unless you're purely innocent now on the other side of it I don't want to put anyone that's innocent in jail but I try not to bring anyone into the interview room that's innocent and there are a couple that I have let walk away because they were innocent okay the interviews how do we approach the interviews there's a number way to approach interviews there's a number of types of people that I deal with first thing I do anyone know what they get told first when they're in an interview Miranda Miranda warning okay it's not a right you don't have a right to Miranda those rights have always been theirs called the Constitution you're just teaching you're doing a real quick class on the Constitution for these people usually they don't listen to it and this is the way I get my Miranda warning look I have to tell you this just pay attention okay they're usually sitting back or they're very attentive you have the right to remain silent do you understand that yes anything you say may be used against you in a court I don't have to say it will be I say it may be okay and they get that you have a right to an attorney and if you can't afford one one may be appointed to represent you got that you can decide not to talk quit talking to me at any time and exercise these rights you understand that sure now before I do the primary thing that's needed with those rights and that's to get a waiver I say now before you say anything let me tell you what I know and over all the time I've had to put together what this individual was supposedly involved and I don't say supposedly because professor doing sitting over there that this individual was involved in I will tell the story that I put together and it'll be pretty close to what happened and I can see that it's pretty close to what happened because that individual starts slumping down in their chair put their hand to their face doing this in their mind oh my god I'm going to jail forever okay and I can see it I said now that you know what I know do you want to talk to me and why do I do that because if I didn't do that is if I said you want to talk to me they'll say no so I give them the time to think about and then comes the next phrase now before you start talking to me let me tell you the difference between a lie and a truth if you lie to me and I get before the judge and I tell the judge that you were dishonest with me that's just not gonna make them happy but if I get before the judge and tell them you're honest straightforward willing to take responsibility for your actions that is going to help you that's not a lie though that is true in Virginia Beach courts it will help them you know they may not get five years they may get three years they're still going to prison or they're still going to have a felony but it will help them and then I have to determine what kind of person I have and there's two types there's the one like I mentioned to you earlier where I have to talk to him talk to him about different things get into their own skin as the word is and try and get them to talk to me and discuss things I had a sexual assault case I had to talk to the guy how hot the woman was and I understand where he was coming from and when that when I said that we were buds and he started talking to me and he's still sitting in prison okay so you've got to get in there and you got to go place the other side is I can't try and act like that individual acts okay I can't try and act like what we call lovingly a hood rat I can't try and act and talk like him because I'm an older white guy we don't talk like that and that would be an insult and you can't insult people it doesn't matter who they are it doesn't matter where they grew up it doesn't matter where they're from you can't insult people like that you have to be yourself so you have to get in into there mindset in the way they're thinking and have a discussion with him the other type of person is the one that likes to tell story this young man great man I love him to death he didn't go to jail because I went to bat for him because I felt sorry for him he was a newlywed he was having money problems former Marine I said tell me what happened and he told me this beautiful story about what happened what he had done is he had sold a piece of equipment that his ex-employer had had that he had stolen told me the beautiful story of what happened about him finding it on the side of the road and all that kind of stuff Dameon question about him after he finished his whole story very unwell the very beautiful story i sat there and listened to it for 15 minutes I looked and I said you stole the stuff from your boss didn't you yes sir I did I had nothing I really had nothing except the fact that he had sold it so there's those those types of people and then the third type the one who tries to be the hood who tries to be the criminal who cries like a baby when they walk into jail but when they're on the street there is tough tough as rocks you go in there with your paperwork you sit down and you just start doing paperwork and usually have a videotape sitting on top of it just for measure so they think I have a videotape and you just sit there don't tell them Miranda just sit there and wait for them to start talking because they will they want to talk people want to communicate they hate silence that's why when people speak you hear hmm when they're talking because they need to fill that void with something people hate silence so that's the other one so that's another way so so you see how there's an unlevel playing field here even with with the most educated individual there's an unlevel playing field if you talk to the police everything's gonna be written down if you get pulled over for it for a ticket they give you the ticket and you pull off you ever see the cop pull off right after you usually not that's because on the back of their ticket they're writing down everything you said and it's gonna come into court if you go to court everything that said I write down every phone call I make has to have a listening device on it is that illegal how many parties need to know that a phone conversation in Virginia is being recorded one me I know is recorded I get many many confessions over the phone okay back to the people yes they're stupid okay people are stupid I had a young man who told me straight up I'm going to college I'm going to law school I'm too smart you'll never find out what happened okay he was going to Tidewater Community College the law school of I suppose Tidewater Community College he was the partner to the one who I told you interview about just a little while ago where I would ask him what he needed the money for he was his partner and he was very smart so he thought he thought he was a very intelligent individual I ended up arresting him five times out of his house his mother hated me she liked me the first time she apologized she didn't really like me much the second time it got to the point where she really hated me after that he's doing eight years upstate he's very smart because he decided to tell me how smart he was and in telling me how smart he was he let it slip that he doesn't sell stolen stuff to pawnshops he sells it to flea markets because they do not have to report to the state I know how to drive to a flea market just as good as anyone else and go look for stuff that I'm looking for so he was trying to impress me with his ability to be smarter than I was and he confessed so people are inherently stupid especially criminals now and don't get me wrong there are some very intelligent criminals out there and most of them work in really big office buildings in for suits yep she went to jail is she hurting no but there are some very intelligent Street criminals out there as well to get other people to do their bidding and so forth and so on and people are afraid to turn on them but there are some very foolish people just a couple of other things I do a thing usually with younger people usually between the age of I try not to deal too much with juveniles but between the age of 16 and and 25 is once they've talked to me now let's back up a little bit you don't need a recording in court for a statement as Professor Dwayne said it's his word against my word if he was a defendant number one and this is the way it works and this is the way the real world works in case you guys haven't been out there that's out beside the windows out there the jury looks at a defendant sitting next to a Pross defense attorney that's strike one because the jury is already looking at that song as that being someone who did something that put them in that chair number two they get a uniformed police officer up there they get someone wearing a suit as a detective up there that is a professional witness that's strike two so now they have a professional witness against them and then if they've confessed and that professional witness is going to sit there and read from his or her notes the confession that's strike three go get your orange jumpsuit do not pass go do not collect $200 so they have all this trikes again and I know you're innocent till proven guilty but it's a jury of your peers and the perception is if you're sitting next to a defense attorney you have to prove you're innocent and that's that's just the perception of a lot of the jury no matter how many jury instructions they get they still perceive that person is a hoodlum is a criminal and no matter how hard some defense attorneys try to put their clients in suits and have them sit up at the table if the trial is a long trial they fall back to their old ways and they start acting and speaking in a way that's not very good for their case so saying that you don't have to have a recording myself crushin hearing a statement was trying to be suppressed because when I record a confession or an interview because we don't do interrogations the police we do not do interrogations that's a bad mean Nazi kind of word okay we do interviews okay you'd be amazed how much difference it makes when you use that one one-word advice is interrogation I'll take it off the tape and I'll have my secretary put it to paper me till afterwards I'll take that tape and I'll scan it over my magnet throw it in my box so I can use it again I do not keep the tape it is not evidence it's not required to be evidence it is there if it's there for the court it's just extra you don't have to have that but it's really good to have the suppression hearing he tried to suppress that after I testified the defense counsel stood up and says well judge I really don't have anything to say and the judge judge Canada said motion denied and let's move on and go to court so you don't have to have recordings you don't have to have videotapes the police videotapes that's just extra if you've got that police officer sitting there test fun you don't have to have that videotape you got the guy that was right there to tell you what happened but it's always nice to have those extra things and what I do for these young people is I'll say look the person who you broke into their house are very upset they're very angry because you sold their stuff to the pawnshop pawnshop stuff sold them they don't get their stuff back they're very angry they want you to go to prison okay they may be very angry they want you to go to prison they may want to to lessen that that's the start of what's commonly known as a lie because we are allowed to lie in interviews to lesson that you might want to make them happy and the reason that's why is because when it is a felony in Commonwealth of Virginia the victim has nothing to do with the prosecution or how long do people go to prison or any of that kind of stuff we're prosecuting them not to victim but to lessen that what I'd like you to do is write an apology letter to the person whose house you broke into just write it out and well how do I write it in your own words just right you know I'm sorry for what I did then say that you know when I broke into your house the other night whatever they ride it out they sign it I sign as a witness I put the date in the time that it was written I give it to the Commonwealth's Attorney it's entered as evidence as a written confession in the person's own handwriting I don't type it up again and have them sign it in their handwriting a written confession is that person going to get convicted I have never seen him not get convicted on that on an apology letter so in support of Professor Dwayne everything he says is right that's what I do now to take away the support I don't try and send innocent people to jail that's it that's all I have any questions or anything like that sir