If you’ve ever visited the main page of my original website, you know that I start right off the bat by explaining that you have the right to remain silent, and advising that you use it.
The thing that never ceases to amaze me is how often — even when they know they should not — people talk.
But recently I encountered a situation which went beyond the normal problem: someone seeking legal advice came to talk to me and, before I could stop that individual, spilled the beans on a whole bunch of stuff I did not want to know.
We criminal defense attorneys often tell people, whenever we can, that they have a right to remain silent. We nearly always suggest that they exercise that right; in other words, unless some attorney looking after the client’s interests tells them differently, they should not talk to anyone about the facts of their cases, or charges, or counts, or — anything relating to their cases.
I put all those other ways of saying it in there because I’ve learned over time that people will sometimes say, “I didn’t mention anything about my case: I just talked about one of the counts!”
Or some equally crazy variation of that statement.
Surprisingly — well, surprisingly to me — even people who know and supposedly understand the rule still talk. To friends. To family. To the police.
Not too terribly long ago, I had someone come to my office about representation. As the story proceeded, I learned that the potential client had already spilled her guts to the po-po. As I often do, I pointed to my business cards near the corner of my desk and suggested she take one. The backs of my cards contain the following statement:
This is the only thing you have to say to anyone from the government (for example, police officers):
Before answering any questions, I want to speak to attorney Rick Horowitz. I will not speak to anyone, answer any questions, respond to any accusations, waive any legal rights, or consent to any search of my person, papers, or property, until I have first obtained the advice of attorney Rick Horowitz.
It then says, in large capital letters,
AFTER THAT DO NOT ANSWER QUESTIONS UNTIL AFTER YOU TALK TO ME!
She didn’t reach for the card.
Instead, she said, “Here’s the sad thing: I have your card. I know what’s written on the back of it.”
“Why did you talk?,” I asked.
“Because the cops scared the shit out of me,” was the response. You see, as they nearly always do — whether they’re in court testilying under oath, or just chatting with you on the street — the officer lied to her. He made her think that he knew more than he knew, telling her that he had evidence and eyewitnesses which he did not have.
Cops are allowed to do this by law.
Which is a good thing, because large numbers of police officers are incapable of being truthful in most situations relating to their investigation of, reports about, and testimony concerning any investigation on which they’ve worked, are working, or will work. Lying comes even more naturally to police officers than shooting unarmed civilians.
So where was I? Oh yeah! “Lying comes even more naturally to police officers than shooting unarmed civilians.” And, as I mentioned, this is perfectly legal and I said “this is a good thing.” What I meant was, it’s a good thing that it’s perfectly legal.
Because we wouldn’t want our police officers breaking the law all the time, dontchaknow.
At any rate — sorry for all the digressions; it’s one of those days — the officer lied to the “suspect” and the “suspect” was thereby induced to ignore the right to remain silent and speak.
Well, it happens. And most people are used to being told — even that potential client had been told — not to talk to the police. Hopefully, most of them also understand they shouldn’t be talking to anyone else about crimes they may be suspected of committing, either.
What many don’t know, though, is that unless specifically instructed differently by their attorneys, they should not even be talking to their attorneys about crimes they are suspected of committing.
In other words, if you come to my office, unless I specifically ask you, I do not want to know that you are guilty. Also, unless you’re telling me that you were in London when the Fresno Mini-Mart was robbed, I almost certainly don’t want you telling me what you were doing at the time of the robbery!
“Why is that?,” you wonder.
Because you’re, at least theoretically, trying to hire me to defend you. And let me tell you what I will not — what I cannot — do while defending you: I cannot knowingly lie to, or perpetrate a fraud on, the court. I’m not going to be able to help you cover up a crime. When you come to me and say, “I just killed Sally Mae. What should I do?” I’m not going to be saying, “Quick! Grab a match and a shovel! Go burn the body; then bury it!”
Of course, I don’t often have people coming to me asking how to get rid of bodies. By the time I see them, figuring out what to do with the body is usually a moot point. But what does happen is that sometimes people come to me, tell me all about how they committed a crime, and then ask me to tell them what they should say when they testify in court. What they don’t know is that, if they tell me they committed a crime, they almost certainly won’t be testifying in court.
At least not with me as their attorney.
To those people who never really understand what it is that criminal defense lawyers do anyway — and understand even less why we do what we do — this frequently sounds kind of sleazy, but I absolutely do not care if you are guilty. And I certainly don’t want you to tell me that you are.
At least, that’s how it is 99.9% of the time. (But the exceptions don’t matter here.)
See, the thing is this: I make my living defending people accused of committing crimes. That’s what I’m paid to do. And the Constitution of the United States — hated by conservatives and most law enforcement officials everywhere — makes this possible, by virtue of a little-known bit of text known as the Sixth Amendment.
That Amendment says, among other things that
In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.
And that’s where I come in.
That Amendment, however, does not permit me to “defend” someone by affirmatively perpetrating a fraud upon the court, or upon juries. We just can’t do it. (So, to the nutbag who refused to cooperate with me in his defense, stating “just do what you attorneys do” while motioning with his hands and dancing a jig, that’s why I called you a nutbag.)
And so, finally, perhaps you understand why I don’t necessarily want to know what you were doing inside the house when it was burgled; I don’t want to know that you know the police are lying about what happened, because you were there. Because, you see, it doesn’t matter if the police are lying about what happened, or how it happened, if you really are guilty.
Does this mean I can’t defend guilty people?
Of course not.
It simply means what I said: I don’t want to hear from you that you are guilty, that you did the deed — at least not if, after telling me all this, you want me to put witnesses, including you, on the stand to testify about how you were in London at the time the Fresno Mini-Mart was robbed.
You have the right to remain silent. When it comes to being a witness against yourself — that is, when it comes to spilling the beans about your guilt — no one, including me, can compel you to do that.