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.

Incidentally, let me interrupt myself here momentarily to ask you to do something. There is a website called “Injustice Everywhere: The National Police Misconduct Statistics and Reporting Project.” From the name of the website, you can pretty much guess what they do. It is an important project that takes a lot of work and costs a bit of money. Even if you don’t necessarily care that much about their project — although I hope you do — if you enjoy reading my blog, I hope you’ll go to their website and make a donation because I rely on them sometimes for background when writing! With my site getting almost 1000 hits most weeks, I figure if everyone who reads my blog donates just $10 to them, they should get a decent chunk of change. Hell, if all you can afford is one dollar, go donate it now!

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.

So don’t.

38 comments

  1. Very common scenario these days:

    1. a relative calls 911 because they feel that their family member is in some danger
    2. the police arrives and kills the family member

    The most recent case was in Salt Lake City, when said family member, Joey Tucker, forgot to take his diabetic pills before driving, so his father had audacity to call 911 and ask for help. The police certainly helped to the fullest extent: they chased Joey’s car without announcing or ordering to stop, then slammed him into the barrier of the highway, and when he eventually stopped, immediately killed him in his car.

    The explanation is always the same – the officers feared for their life; coupled with the common perception that police officer’s job is dangerous (it does not make even the list of 10 most dangerous jobs), that they have to make “split-second decisions” (most never fire a shot in their whole career), and that they protect others (it’s not their job, as has been affirmed numerous times by numerous courts). Remarkably, as many former Army men have attested on many forums, Army’s rules of engagement in foreign countries are much more strict, and if a soldier did what the police here does to the citizens with impunity, to a member of the local foreign population, his being court-martialed would be guaranteed.

  2. Very common scenario these days:

    1. a relative calls 911 because they feel that their family member is in some danger
    2. the police arrives and kills the family member

    The most recent case was in Salt Lake City, when said family member, Joey Tucker, forgot to take his diabetic pills before driving, so his father had audacity to call 911 and ask for help. The police certainly helped to the fullest extent: they chased Joey’s car without announcing or ordering to stop, then slammed him into the barrier of the highway, and when he eventually stopped, immediately killed him in his car.

    The explanation is always the same – the officers feared for their life; coupled with the common perception that police officer’s job is dangerous (it does not make even the list of 10 most dangerous jobs), that they have to make “split-second decisions” (most never fire a shot in their whole career), and that they protect others (it’s not their job, as has been affirmed numerous times by numerous courts). Remarkably, as many former Army men have attested on many forums, Army’s rules of engagement in foreign countries are much more strict, and if a soldier did what the police here does to the citizens with impunity, to a member of the local foreign population, his being court-martialed would be guaranteed.

  3. What about MURDER when an or two officers use unreasonable force on an innocent person both taze the man untill he is not moving,seconds later take his pulse and pronounce him dead and string the yellow crime scene tape before even trying any type of help. then the death certificate from the cornors office reads that the death was due to a methemph. overdose? if that were the case and this person died of an overdose why would the reason for both officers use there tazers on a man according to them or the cornor schould have already died from an overdose. with witnesses still there is no investigation into this matter. this happened in tulare to an innocent man whhich by the way had called the police himself and yes may have tryed to resist to get his point accross no matter meth or not this man is dead now not from a drug overdose but at the hands of these two officers. and it never even hit the news imagine that

  4. What about MURDER when an or two officers use unreasonable force on an innocent person both taze the man untill he is not moving,seconds later take his pulse and pronounce him dead and string the yellow crime scene tape before even trying any type of help. then the death certificate from the cornors office reads that the death was due to a methemph. overdose? if that were the case and this person died of an overdose why would the reason for both officers use there tazers on a man according to them or the cornor schould have already died from an overdose. with witnesses still there is no investigation into this matter. this happened in tulare to an innocent man whhich by the way had called the police himself and yes may have tryed to resist to get his point accross no matter meth or not this man is dead now not from a drug overdose but at the hands of these two officers. and it never even hit the news imagine that

  5. (correction)

    even if the plaintiff initially prevails, the appellate court will most likely overturn it.

    should read

    even if the jury initially finds the officer guilty, the appellate court will most likely overturn it.

    (it’s not a civil case)

  6. (correction)

    even if the plaintiff initially prevails, the appellate court will most likely overturn it.

    should read

    even if the jury initially finds the officer guilty, the appellate court will most likely overturn it.

    (it’s not a civil case)

  7. http://www.lewrockwell.com/roberts/roberts290.html is good article discussing these matters, also analyzing the reasons. “Considering the data, one might conclude that the police are a greater danger to the public than are criminals.” . I think, the current trend to their becoming more and more aggressive is described in reason #3 from the article – federal government giving local PD’s huge funds and training in the course of “war on terror”, with the purpose of seeing a potential terrorist in every civilian, until proven otherwise. It’s not unusual for them to give anti-riot equipment for several hundred thousand dollars to a PD in a village with couple thousand residents. This is what we know about, plus no doubt there are lots of sealed instructions and advisories coming out every day. Security-industrial complex has become a huge industry, it produces its product non-stop, employs many thousand people who all want their careers grow, and with complete absence of any real terrorism to justify its existence, they simply have no other option than to terrorize the population. So we have TSA that has not caught a single terrorist ever but creates new rules on monthly basis, then arrests kills people for violating them; and we have militarizing the police and training them to harass the public on every opportunity.

    Another reason is unaccountability, part of which is the fact that lawsuit against the police has little chance to succeed; even if the plaintiff initially prevails, the appellate court will most likely overturn it. Here’s some discussion about this: http://tinyurl.com/6bw27s2 . The freshest example is just-announced not charging Ian Birk for the murder what was 100% obvious to everyone who saw the video (this is the cop who shot from the back a drunk man on the street in Seattle for not following his orders, all within 5 seconds).

  8. http://www.lewrockwell.com/roberts/roberts290.html is good article discussing these matters, also analyzing the reasons. “Considering the data, one might conclude that the police are a greater danger to the public than are criminals.” . I think, the current trend to their becoming more and more aggressive is described in reason #3 from the article – federal government giving local PD’s huge funds and training in the course of “war on terror”, with the purpose of seeing a potential terrorist in every civilian, until proven otherwise. It’s not unusual for them to give anti-riot equipment for several hundred thousand dollars to a PD in a village with couple thousand residents. This is what we know about, plus no doubt there are lots of sealed instructions and advisories coming out every day. Security-industrial complex has become a huge industry, it produces its product non-stop, employs many thousand people who all want their careers grow, and with complete absence of any real terrorism to justify its existence, they simply have no other option than to terrorize the population. So we have TSA that has not caught a single terrorist ever but creates new rules on monthly basis, then arrests kills people for violating them; and we have militarizing the police and training them to harass the public on every opportunity.

    Another reason is unaccountability, part of which is the fact that lawsuit against the police has little chance to succeed; even if the plaintiff initially prevails, the appellate court will most likely overturn it. Here’s some discussion about this: http://tinyurl.com/6bw27s2 . The freshest example is just-announced not charging Ian Birk for the murder what was 100% obvious to everyone who saw the video (this is the cop who shot from the back a drunk man on the street in Seattle for not following his orders, all within 5 seconds).

  9. Reg T: We need a few million more like you.

    “Peace Officers” – like the ones I grew up with – understood their role to be “To Protect and Serve” WE THE PEOPLE.

    Today’s “Law Enforcement” morons are no better than Gestapo/SS Thugs, who represent only The State, Protect only their own @$$es and serve only Their Masters in Government.

    This is why most of us are learning that today’s “Law Enforcement” is – collectively – the largest, most violent street-gang in America today.

    Don’t get me wrong – I have some friends who are Peace Officers – and who would likely be much better off career-wise if they were willing to be “Law Enforcement Officers.”

    No better illustration of who is who than to hear one of the pigs talking about “civilians.” Yeah – I said PIGS. Anyone with such an “us and them” attitude isn’t fit for a more respectful title.

    You’ll also note how respectful I’ve been here to Peace Officers, right?

    For the others: Pigs ain’t Peace Officers – and Peace Officers ain’t PIGS.

    If you can’t tell the difference, odds are that you’re a pig!

  10. Reg T: We need a few million more like you.

    “Peace Officers” – like the ones I grew up with – understood their role to be “To Protect and Serve” WE THE PEOPLE.

    Today’s “Law Enforcement” morons are no better than Gestapo/SS Thugs, who represent only The State, Protect only their own @$$es and serve only Their Masters in Government.

    This is why most of us are learning that today’s “Law Enforcement” is – collectively – the largest, most violent street-gang in America today.

    Don’t get me wrong – I have some friends who are Peace Officers – and who would likely be much better off career-wise if they were willing to be “Law Enforcement Officers.”

    No better illustration of who is who than to hear one of the pigs talking about “civilians.” Yeah – I said PIGS. Anyone with such an “us and them” attitude isn’t fit for a more respectful title.

    You’ll also note how respectful I’ve been here to Peace Officers, right?

    For the others: Pigs ain’t Peace Officers – and Peace Officers ain’t PIGS.

    If you can’t tell the difference, odds are that you’re a pig!

  11. Hello Mr. Horowitz. I need some advice, can I email you? I have a few questions concering traveling as a soverign that play into your article.

    1. Kyle: First, thank you for your comment, which gives me a chance to point out two things.

      Anyone can email me at any time via my Contact Form. However, I don’t actually give legal advice via email to non-clients. More importantly, (this is the second thing) I’m a criminal defense attorney practicing in California’s state and federal courts. As such, I don’t think I’m qualified to give someone advice about “traveling as a sover[e]ign.” (I’m not even sure I know what you mean by that.)

      About the only thing I could suggest would be to talk to our State Department, or perhaps an international law attorney, about your question.

  12. Hello Mr. Horowitz. I need some advice, can I email you? I have a few questions concering traveling as a soverign that play into your article.

    1. Kyle: First, thank you for your comment, which gives me a chance to point out two things.

      Anyone can email me at any time via my Contact Form. However, I don’t actually give legal advice via email to non-clients. More importantly, (this is the second thing) I’m a criminal defense attorney practicing in California’s state and federal courts. As such, I don’t think I’m qualified to give someone advice about “traveling as a sover[e]ign.” (I’m not even sure I know what you mean by that.)

      About the only thing I could suggest would be to talk to our State Department, or perhaps an international law attorney, about your question.

  13. We understand the part about “remaining silent”, but that does not make the citizen any safer. If an agent of the government is going to lie – to falsely accuse, manufacture statements, plant evidence, misquote – then the silent accused is going to get ripped down and shredded by other means. Remember, THE UNITED STATES IS NO LONGER A COUNTRY OF LAWS, BUT A COUNTRY OF TERRIBLE AND POWERFUL MEN: Kings, Nobles, Lords, Masters, Overseers, Controllers, agents of the Banksters all.
    A grand seizure is coming, and not just for property and freedoms, but for the very spirits of all good and free men who serve the only True and Righteous Authority in the universe.
    The Endarkenment is upon us. Prepare to be ReConstructed.

  14. We understand the part about “remaining silent”, but that does not make the citizen any safer. If an agent of the government is going to lie – to falsely accuse, manufacture statements, plant evidence, misquote – then the silent accused is going to get ripped down and shredded by other means. Remember, THE UNITED STATES IS NO LONGER A COUNTRY OF LAWS, BUT A COUNTRY OF TERRIBLE AND POWERFUL MEN: Kings, Nobles, Lords, Masters, Overseers, Controllers, agents of the Banksters all.
    A grand seizure is coming, and not just for property and freedoms, but for the very spirits of all good and free men who serve the only True and Righteous Authority in the universe.
    The Endarkenment is upon us. Prepare to be ReConstructed.

  15. One attorney I spoke to asked the question in the best way possible:
    “Without telling me any of your personal actions, what do you think the police think happened?”
    then for a follow-up:
    “Why do you think the police think that?”

    Also, I want to say: If you ask for your attorney and the police aren’t sure that you committed a crime, they will be then.

  16. One attorney I spoke to asked the question in the best way possible:
    “Without telling me any of your personal actions, what do you think the police think happened?”
    then for a follow-up:
    “Why do you think the police think that?”

    Also, I want to say: If you ask for your attorney and the police aren’t sure that you committed a crime, they will be then.

  17. Excellent advice. As a former San Diego police officer, I agree with everything you have written here, with one exception: True conservatives do not hate the Constitution. I would rather a hundred criminals got off scott-free (as they often do) than for an innocent person to suffer the loss of their liberty.

    Please don’t confuse being conservative with being pro-“law and order”, pro-law enforcement. Some of us in uniform were peace keepers, not “law enforcement” officers, because we believed in the Constitution and realized there are laws which should not be enforced.

  18. Excellent advice. As a former San Diego police officer, I agree with everything you have written here, with one exception: True conservatives do not hate the Constitution. I would rather a hundred criminals got off scott-free (as they often do) than for an innocent person to suffer the loss of their liberty.

    Please don’t confuse being conservative with being pro-“law and order”, pro-law enforcement. Some of us in uniform were peace keepers, not “law enforcement” officers, because we believed in the Constitution and realized there are laws which should not be enforced.

  19. Vad, if the lawyer didn’t want the truth, he wouldn’t ask the question. No competent lawyer would rely on a new client’s imagination to tell him what the defense to a case should be.

  20. Vad, if the lawyer didn’t want the truth, he wouldn’t ask the question. No competent lawyer would rely on a new client’s imagination to tell him what the defense to a case should be.

    1. If your lawyer asks you a question, you should always tell him or her the truth. As I said in the post above, my feeling is that “unless some attorney looking after the client’s interests tells [you] differently,” you should exercise your right not to say incriminating things about yourself. I also said, “unless specifically instructed differently by their attorneys,” clients shouldn’t tell their attorneys they committed crimes.

      The flip side of this is, obviously, if your attorney does ask, you should tell him or her.

      What I didn’t say in the post — I did not want to either dilute my message, or make my post terribly long — is that not all attorneys feel the same way. Some attorneys feel they should know (as I think is borne out by a comment posted by Mark Bennett above). Some attorneys will represent someone accused of certain crimes, but not if the attorney thinks the person actually did it. (I don’t understand that, myself: a criminal defense attorney is a criminal defense attorney and, to my way of thinking a person’s rights to counsel don’t change based on the crime.)

      Finally, many times, unless you’ve got a rock-solid alibi, supported by numerous people, or perhaps some other reason goes against this, an accused person isn’t going to testify anyway. Therefore, whether they’ve confessed all manner of crimes to their attorney is almost certainly irrelevant.

      But, as I said, I know many attorneys — I’m not the only one — who would rather not have their clients tell them “I did it,” because it automatically rules out certain defenses for them. At least where I practice, it is my understanding — and, again, I am not alone in believing this — that California’s rules say I can’t do certain things if I know my client is going to lie or try to trick the court. But thinking I know and knowing are two different things.

      I’d rather avoid the possibility that some ultra-conservative tribunal is someday going to decide that I should have known my client wasn’t lying to me when he or she made self-incriminating statements. That’s why, sometimes, I don’t ask.

    1. If your lawyer asks you a question, you should always tell him or her the truth. As I said in the post above, my feeling is that “unless some attorney looking after the client’s interests tells [you] differently,” you should exercise your right not to say incriminating things about yourself. I also said, “unless specifically instructed differently by their attorneys,” clients shouldn’t tell their attorneys they committed crimes.

      The flip side of this is, obviously, if your attorney does ask, you should tell him or her.

      What I didn’t say in the post — I did not want to either dilute my message, or make my post terribly long — is that not all attorneys feel the same way. Some attorneys feel they should know (as I think is borne out by a comment posted by Mark Bennett above). Some attorneys will represent someone accused of certain crimes, but not if the attorney thinks the person actually did it. (I don’t understand that, myself: a criminal defense attorney is a criminal defense attorney and, to my way of thinking a person’s rights to counsel don’t change based on the crime.)

      Finally, many times, unless you’ve got a rock-solid alibi, supported by numerous people, or perhaps some other reason goes against this, an accused person isn’t going to testify anyway. Therefore, whether they’ve confessed all manner of crimes to their attorney is almost certainly irrelevant.

      But, as I said, I know many attorneys — I’m not the only one — who would rather not have their clients tell them “I did it,” because it automatically rules out certain defenses for them. At least where I practice, it is my understanding — and, again, I am not alone in believing this — that California’s rules say I can’t do certain things if I know my client is going to lie or try to trick the court. But thinking I know and knowing are two different things.

      I’d rather avoid the possibility that some ultra-conservative tribunal is someday going to decide that I should have known my client wasn’t lying to me when he or she made self-incriminating statements. That’s why, sometimes, I don’t ask.

  21. For my part, I would rather have my client tell me the truth and then not testify than lie to me and then testify falsely. But if a client first told me he did the deed, and then told me he didn’t, I wouldn’t automatically assume that the second story was a lie.

    1. I wondered, when I posted that, what other experienced attorneys would say. I’ve talked to many around here who say the same as me. But your point about not necessarily believing them when they say they did it is an interesting one (and I can see where sometimes it might be that they’d be lying when they said they did something).

      As for having them lie to me, I hope you know I never advocate that. I always say, “If I don’t ask you about something, like ‘did you do it?,’ then you’re not responsible for telling me. But if I ask you something, even ‘did you do it?,’ don’t lie to me. If you lie to me, then I might do something I wouldn’t have done otherwise, which could be the wrong thing to do.”

      I don’t practice anywhere else and haven’t enough knowledge of other places to know how things work elsewhere: it’s my understanding that in California, if we know our client is lying on the stand, we can’t just pretend they aren’t, although there is some disagreement about what that exactly means.

      I just figure I’m safer sometimes not knowing certain things.

  22. For my part, I would rather have my client tell me the truth and then not testify than lie to me and then testify falsely. But if a client first told me he did the deed, and then told me he didn’t, I wouldn’t automatically assume that the second story was a lie.

    1. I wondered, when I posted that, what other experienced attorneys would say. I’ve talked to many around here who say the same as me. But your point about not necessarily believing them when they say they did it is an interesting one (and I can see where sometimes it might be that they’d be lying when they said they did something).

      As for having them lie to me, I hope you know I never advocate that. I always say, “If I don’t ask you about something, like ‘did you do it?,’ then you’re not responsible for telling me. But if I ask you something, even ‘did you do it?,’ don’t lie to me. If you lie to me, then I might do something I wouldn’t have done otherwise, which could be the wrong thing to do.”

      I don’t practice anywhere else and haven’t enough knowledge of other places to know how things work elsewhere: it’s my understanding that in California, if we know our client is lying on the stand, we can’t just pretend they aren’t, although there is some disagreement about what that exactly means.

      I just figure I’m safer sometimes not knowing certain things.

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