Initial contact non-custodial

Continuing our discussion of the initial contact non-custodial (i.e., not under arrest) interrogation, let’s look at some of the tactics you might be facing. There is a lot of truth to the good cop/bad cop maxim. Sometimes this can be the same person. Often a person will be presented a situation in which the detective or agent will present themself as the only hope for you. This is false and is designed to get you to believe that the illusory relationship exists so you will make the incriminating statements sought by this interrogator. Also note that I use the term interrogation and interrogator not the law enforcement preferred “interview”. YOU are not being interviewed you are being interrogated. This is not a job interview but law enforcement attempting to get enough evidence against you to charge you with a crime. An interrogator has no authority to promise you any benefit from talking to them. More common is the vague promise, the “I can help” without saying what that help actually is. It is a crime for you to lie to law enforcement, it is called “obstruction”. Remember it is not a crime for them to lie to you. If they lie to you and you make ill advised statements then you will suffer those ill effects. The bad cop is less likely today than the good cop, threats and predictions of dire consequences for not talking to them have largely disappeared in favor of the “be your friend” approach.
Finally, don’t be misled by the “your just a witness” ploy. I have represented several individuals who began as “just witnesses” and ended up defending against charges when the target case fell apart. I recently represented a person in this “witness or defendant posture” being pressured by the FBI. He retained me and I provided him the tools he needed and the representation to make the FBI go away. He was never charged. I provide clients a form titled Assertion of Rights which, among other things, directs law enforcement to not talk to my client but to call me. I then tell them we are not talking to them in most instances.

Can words be used against you?

Let’s continue the discussion of how not to have your words used against you. You have been approached by some law enforcement agent regarding an offense. It is unclear to you whether you are being targeted for prosecution or are being approached as a material witness. You quickly decide that not talking at this time is in your best interests and that you need to consult a lawyer to protect yourself from making a mistake. How do you go about this? First, you can simply say, “I am not going to talk to you.” While this seems sufficient, it also holds a hidden use against you. This refusal can be used against you later. This statement, according to the U.S. Supreme Court, is NOT an invocation of your 5th Amendment right. You must specifically invoke or state “I am excercising my right to remain silent and do not choose to speak with you.” This refusal cannot be brough up and used against you later. We will discuss more about this “invocation” issue as we progress through the process. For now, just remember that to be effect you must include a reference to the 5th Amendment in your refusal.

Is “Miranda” Necessary

Following up on last week’s initial contact post, let’s look a little deeper into that encounter. Many people wrongfully believe that a person must receive the well known “Miranda” warning when they are questioned by law enforcement agents or police. While this can get far more technical than I intend in this post, let me say that if you have not been arrested then you will not be “Mirandized” and the conversation will generally be considered to be consensual by the court. It gets a little more murky, but if you go to the police station or FBI or other law enforcement office to talk with them, even if you felt compelled to go, but are not under arrest, this will also be considered a consensual conversation and what you say will likely be used against you. Let’s take this one step further. Assume you are challenged that what you are saying is not true, or that you are not believed, but you are free to leave. Your best option is not to try to explain your prior statements but to terminate the “interview” and leave. Whether you have told the truth is irrelevant at this point. Any attempt to clarify will be written up as a change in your story, that you were giving different stories and were not being truthful with the officer, detective or agent. The constant thread in these posts will be DO NOT TALK WITHOUT YOUR LAWYER PRESENT. I never recommend clients make any statement. There truly is no need to do so and the unwanted consequences are far greater than remaining silent.

Federal Criminal Defense

Federal criminal defense is different than state court criminal defense in many ways. It is more formal from a procedural perspective and it is more complicated both in the prosecution and, if necessary, the sentencing. Your lawyer cannot simply “wing it” in Federal court. The stakes are too high and the system will reveal the lack of knowledge by such a lawyer very quickly. There is a completely different language spoken in Federal criminal prosecutions. We can call it criminal Federalese, but it is a sort of shorthand speak for all of the rules and statutes which the average lawyer has no regular contact nor familiarity.

I began my Federal practice experience as a LIcensed Legal Intern in 1980. My admissions to Federal courts as a fully licensed attorney began in 1982. I am or have been admitted to all Oklahoma Federal district courts, the Federal District of Kansas, the Central District of California, the 10th Circuit Court of Appeals and the United States Supreme Court. I am available for the defense in any U.S. District Court or Circuit Court of Appeal. I have practiced in every court to which I have been admitted. I have argued numerous cases before the Federal Circuit Court of Appeals in Denver.

I also have extensive experience in defending complex Federal criminal cases. I am also a trainer for lawyers wishing to become experienced and practitioners of Federal criminal defense.

If you have a Federal criminal case, you have a serious Federal criminal problem. I would be glad to discuss your case and, if appropriate, represent you in your defense.

Initial Contact With Law Enforcement

Today, let me discuss the initial, or first, contact with law enforcement. If the FBI, DEA, Secret Service or Homeland Security come to talk to you about something you may have done, beware. First, remember this is not a social visit no matter how friendly or cordial the agents may be. They are there for one reason only, to gather evidence in the prosecution of a federal criminal case. If the target is you, whether they say so or not, then it is in your interest to NOT cooperate with them. This should be done respectfully but firmly. For example, “Agent I do not choose to speak with you at this time, exercising my rights under the 5th Amendment of the U.S. Constitution. I also choose to have my attorney present and exercise my rights under the 6th Amendment to the U.S. Constitution.” The choice of language is legally important and the U.S. Supreme Court has mad this very clear. My phrasing above, is based on several opinions by the Supreme Court as to how both the right to remain silent and the request for counsel must be stated to preserve those rights.

Also remember that it is perfectly permissible for these agents to lie, or mislead you while conducting this “interview”. Doing so will not get them in trouble with either their agency or the court. I have had FBI, and other, agents admit lying to my clients to get them to say what the agent wanted to hear. These agents have freely testified to doing so in front of juries, so they have no fear of committing such conduct. You should be very careful and that caution should lead you to exercise the rights as stated above.