Don't Talk to the Police

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 that's been on my mind for a while: to stand up and 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 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 a law professor do as long as you live. I'm really putting myself on the spot here.

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 am 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 want to make sure, in fairness to you, that if I'm misleading you or 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 of 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 received a bad reputation in recent times, much of it tragically and unnecessarily due to, as you may have heard, the headlines. Let me read to you something that was taken from the newspaper this morning, and I want you to listen to it closely. I'm giving you a heads up. I'm warning you in advance, which is not fair to you or to me, but I'm giving you a warning that I'll be quizzing you on this in just a few minutes.

This will inform you of 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 victims appear to be the casualties of a gangland-style slaying and possibly the victims of gang-related violence.

The police are investigating this as a possible murder-suicide, but currently suspect that the three victims were all killed by the same individual. No suspects have yet been identified in the slaying, but veteran police detective George Brooke has confirmed that police are following up on evidence pointing to the possible involvement of an off-duty naval officer as the perpetrator. The bodies, discovered by the apartment manager at about 8 o'clock in the morning, appear to have been slain sometime earlier that same evening, probably between midnight and 2 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: "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? Justice Robert Jackson, a prosecutor's prosecutor. Like me, he began his private practice in Buffalo, New York, years before I did. After that, he served as General Counsel for the Bureau of Internal Revenue, the U.S. Department of Treasury, the Securities and Exchange Commission, Assistant U.S. Attorney General for the Tax Division, later the Solicitor General, and the Attorney General of the United States. He then became the Chief U.S. Prosecutor for the Nuremberg Trials.

That's an impressive resume. Years later, when he was a Justice on the Supreme Court, Justice Jackson stated, "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 to you the surprising, 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 being published by people who really ought to know better, who say, "Well, I'll do it. I'll talk to the police. I mean, after all, I'm a senator. I'm O.J. Simpson."

I'm an experienced, highly polished individual. I have extensive experience in public relations, including work with criminal defense attorneys. A couple of months ago, there was a local news story in the Virginia Pilot about an experienced criminal defense lawyer who was convicted of criminal assault after speaking with the police. He was accused of assaulting another attorney in the hallway, and there were no other witnesses to the incident.

A woman said that he grabbed her by the throat during an argument over a case. He denied it. At trial, it 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 an attorney. I'm a criminal defense attorney. I'm savvy. I'm sophisticated."

I've got oratorical prowess. I'm accustomed to dealing with the police, by all means. 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 at trial, he said, "I never touched her."

The officer took her to the stand and testified, "Well, when I met with him, he said he did put his hand on her throat, but it was 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 of the U.S. 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 set of 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 scattered over all 50 titles of the U.S. Code, encompassing roughly 27,000 pages. Worse yet, these statutes often reference the provisions of administrative regulations. Estimates of how many such regulations exist are even less well settled, although the ABA believes there may be nearly 10,000. Here’s one of those 10,000 federal criminal statutes on the books that you probably never heard about.

It's called the Lacey Act, 16 U.S.C. Section 3370. It states that it is a federal offense for any person to import, export, transport, sell, receive, acquire, or purchase any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States, any Indian tribal law, or any state or foreign law. People have been convicted in federal court for violating this statute because they brought back a bony fish from Honduras, unaware that Honduran law— not American law, but Honduran law— forbad the possession of the bony fish. Additionally, individuals have been convicted under this law for possessing what is known as a short lobster, which is a lobster that is below a certain size.

Some states forbid you from possessing a lobster that's under a certain size. Some states forbid you from possessing a lobster if it's under a certain length. It doesn't matter if it's dead or alive. It doesn't matter if you killed it or if it died of natural causes. It doesn't even matter if you acted in a society.

Self-defense. Did you know that? Did you know it can be a federal offense to be in possession of a lobster? Admit it. Raise your hand if you did not know that.

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 instruct clients, like me and Justice Jackson, not to talk to the police or answer any questions.

But you know, they can't have it both ways. You people have 10,000 different ways of convicting us. Good for you, but with the bitter comes the sweet; with the good comes the bad. That's 10,000 different ways my client might unknowingly implicate himself. One of the reasons I decided to give this talk is that 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'd be willing to speak with them. But they said that I'm not a suspect. I know in my heart that I don't think I've done anything wrong in violation of the Internal Revenue Service provisions."

Lord, have mercy. There's no man on earth and 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 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 he never heard from them again. Okay, here’s why you should never talk to the police. Let me spell it out for you clearly. Here are the top ten reasons.

I don't want to actually lie to you. I don't really have ten. I don't have time 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 instinctively and naturally suppose, it cannot help. There is no way it can assist you. Many people believe that it can, but they are always wrong. You cannot talk your way out of getting arrested.

Officer Bruch, you’ve interviewed thousands of criminal suspects. How many times in your experience have you approached someone, asked if you could ask him some questions because, prior to the interview, you had some evidence pointing to his possible guilt? And because of the extraordinary persuasiveness and eloquence with which he articulated his innocence, you said, "Oh, sorry, never mind. Bad call, my bad, I won’t," and he talked you out of arresting him? You know the answer to that.

Never. Never. It never happened. I've often asked other criminal defense attorneys, "In all of your experience, have you ever once had 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 and say, "You've got to be kidding me. You cannot help yourself; you can't talk your way out of getting arrested." Contrary to what you might suppose if you have never studied the rules of evidence, what you tell the police, even if it's exculpatory, cannot be used to help you at trial, because it's what we call hearsay.

Under the 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 attempted to call police officers to the stand and say, "Officer, would you tell the jury what my client told you?" because they believed that what their client told the officer could actually help their case. If you tried that at trial, the prosecutor would object, claiming it is hearsay, and the judge would agree. The police will not be allowed, at your request, to tell the jury what your client told them, no matter how beneficial it may seem for your case. It cannot help, and that should be a sufficient reason.

That ought to be reason enough to keep your mouth shut. But if you're not persuaded, let me talk about a couple of other points. Number two: obviously, one of the most apparent issues arises if your client is guilty, as many of them are. But even if he’s not—if he’s innocent—he may well admit his guilt with no benefit in return. Now, of course, many of you are thinking to yourselves, "What's so wrong about that? I mean, shouldn't guilty people be confessing? Confession is good for the soul; it's good for law enforcement; it's good for the prisons." Yes, that's true. And like the rest of you, if I or anyone close to me is ever the victim of some sort of 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, you don't have to admit your guilt the first time they come by to meet with you. In federal court, 86% of all defendants plead guilty at some point before trial. If your client is guilty and really ought to be punished, and really ought to go through some sort of a cleansing act of contrition and confess to their guilt, there will be plenty of time to do that. They almost always do.

No need to rush; no need to tell the police anything. Wait and see if perhaps your client can work out some sort of arrangement where maybe he'll make some form of compensation to the alleged victim, or perhaps he'll be able to receive a discount on his sentence. Then he'll be treated fairly, like everybody else who had the benefit of a good lawyer who advised, "Please do not talk to the police." And don't forget, by the way, even if your client only admits things that the police already know, you might think, "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. All right, go ahead and tell him. Well, how can it hurt? That he was there. All right, go ahead and tell him.

Well, how can it hurt? It might hurt if the police officer is transferred to Minnesota, becomes deceased, is injured, is in a coma, or cannot be located by the time of the trial. The case will be dismissed if there's no confession. However, if your client has been involved in certain activities, that confession is freely admissible against him and can be the basis for getting him convicted on its own.

Senator Larry Craig can explain all of this to you. The Innocence Project of the United States has confirmed that in more than 25% of all cases where an innocent man was convicted and later released from prison after being exonerated by DNA evidence, in more than a quarter of those cases, these innocent people—people we know to be innocent—made incriminating statements, delivered outright confessions, or pled guilty. How does that happen? He'll tell us all about it, I trust. Here are a couple of famous examples.

You can just ask them. You don't have to take my word for it. There on the left is 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 various recent crimes. During several interviews, police fed details of the crime to Mr. Lloyd, who was mentally ill, and they lied to him, convincing this mentally ill man that by confessing, he might help them smoke out the real killer.

He later signed a confession and gave a tape-recorded statement. It was delivered less than one hour before convicting him on the basis of this confession, as 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. However, after almost two decades in prison, he was released after DNA evidence proved that he was innocent and had falsely confessed to a crime that he did not commit.

On the right is Earl Washington, who was released from prison just a few years ago here in Virginia. After spending 18 years behind bars for a crime he did not commit—a rape and a murder that we now know he was exonerated from due to DNA evidence—this man, Mr. Washington, who was confirmed to have an intellectual disability, 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 may be thinking to yourselves, "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 are."

Okay. Let's talk to you people— you innocent folks. Those of you who have never committed a crime and never will, and none of your clients will either. And you wouldn't go out with a girl who did.

Fine. You better not talk to the police either, okay? Because, number three, we'll put the guilty behind us. Forget about them.

Let's talk about innocent people. Number three: Even if your client is innocent and denies his guilt, and almost entirely tells the truth, the odds are good that he will easily get carried away and tell a little lie or make a small mistake that will incriminate him. This is human nature. When he finds himself in a stressful situation, it's important to remember that even a perfectly innocent client can falter.

The police say he's guilty of murder. He's totally innocent, as innocent as any one of us. So he goes in there and meets with the police. He says, "I don't know what you're talking about. I was nowhere near there."

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 night. That last line was a lie. He went over the top. He was getting carried away. He got into this groove.

He started saying all kinds of things, almost all of them true, that he knew would tend to exculpate himself. Then he got carried away and just said one thing that wasn't true. Unfortunately for him, they can prove that it wasn't true, and he may be convicted on that basis alone. But let's say, well, that'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. We'll be getting into trouble because even if your client is innocent and only tells the truth, he may not be able to provide all the information needed, and anything he might inadvertently leave out could lead to complications.

Now, already, mind you, we're pretty well nigh into fantasy land. The odds of anyone being able to pull this off are really quite slim, no matter how innocent they may be. But just the same, let's pretend. Let's assume he gives the police nothing but the truth, and he is totally innocent. He will always provide the police with 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 says to the police in his denial of guilt: “I don’t know what you’re talking about. I didn’t kill Jones.”

I don't know who did it. 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 liked the guy, but who did? I wouldn't kill him. I've never hurt anybody in my life, and I would never do such a thing. Let's suppose every word of that is true. One hundred percent of it is true.

What will the jury hear at trial? Yes, there was. He confessed to me that he never liked the guy. Then the prosecutor will present this in big letters and say, “Ladies and gentlemen of the jury, it's pretty clear that we've got the right guy here. We've proven that he was in Virginia.”

That night, that's opportunity. And remember, Officer Bruch admitted that after extended questioning, 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 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—ruled in Ohio v. Ryan that, quote, “one of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be isolated 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.

Under the facts of that case, by the way, in *Ohio v. Reiner*, a child tragically died, apparently as a result of shaken baby syndrome. The question was who had shaken this baby to death. One of the possible suspects was a babysitter who had spent some time with the child that week. The babysitter's story was, "I don't know what you're talking about. I did not kill the child. I did not see it happen."

I don't know who shook the baby. It was never me. I never did anything of a violent nature to the child. The Ohio State Court said, "Well, you've got no Fifth Amendment privilege by your own admission." I told the investigators that I had done nothing wrong and that I was not involved, so obviously my answers can't incriminate me.

The United States Supreme Court reversed and stated that this was not true. Even though the babysitter denies shaking the child, denies seeing the child die, and denies knowing how the child died, by her own admission, the government wanted to ask whether the babysitter might have been with the child at some point during the week prior to the death. Although that answer, by itself, was not sufficient to convict anybody, it could help convict her. This means she has a Fifth Amendment right to refuse to answer the question, as the court held, because it could be used to aid in her conviction.

Allman v. United States, which the Supreme Court addressed more than 50 years ago, is eerily prophetic. The Court noted that too many Americans, even those who should know better, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of a crime or committing perjury in claiming the privilege. That's not true, and it never has been. But it gets worse. Can it get worse?

It can. Number five: even if your client is innocent and only tells the truth without saying anything incriminating to the police—which, by the way, is almost impossible to achieve—imagine talking to the police for two, three, or four hours, and someone like him can't somehow extract something from you that could be used to help convict you. That would be extraordinary. I don't think anyone has pulled it off.

But even if you could pull it off, there's still a great 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 weren’t the subject of physical duress. You were in the relaxed setting of a classroom here.

You were given a 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 to you about that? How many people did the police find shot to death last night at that ocean fuel place?

That I told you about A, B, C, D, and Four, who says A, B, C—get this, so get that with a camera. Show us; move that camera. Look at how many hands we've got there for C. Okay, 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 for as long as you live. Why is C not the right answer, by the way? If you know, raise your hand. Yes? Because you didn't state the cause of death.

Excellent. I didn't say anybody was shot. I didn't mention guns, bullets, shooting, or firearms. I 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 and fill in details. I mentioned "gangland-style slang." That may or may not imply something, but it doesn't mean that anybody was shot.

And that's the problem. You see, even if your client is innocent, only tells the truth, and doesn’t provide any incriminating information, his statement can still be videotaped, and his answers can be used to crucify him. You might say, "Wait, how can that happen?" In my insistence, I called the police and said, "Look, if you want to talk to my client, you can talk to him, but only if you videotape the whole thing. I don’t want there to be any debate between the two of you over what happened."

Okay, we'll 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, "I don't know who killed Jones, Officer Bruce. With all due respect, it wasn't me. I've never touched or fired a gun in my life." How can that help incriminate this man?

How could that possibly be used against this man to help convict him? You would 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 Bruch, 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 Officer Brooke turns to the jurors and 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, and your client says, "That's not true, that's not true. I remember he was the one—one of the cops. I was with them for three hours, and one of them in the car said they had a witness who claimed I was the shooter."

Okay, I'll put you on the stand. And then your client testifies, "No, no, no, they did tell me about the shooting. They mentioned it before I said anything about a gun." They—your client's life. And police officers can very easily make a mistake like that, just as so many of you did just a few minutes ago, regarding whether you recall having heard me say something about somebody.

Actually being shot. Police make mistakes innocently, inadvertently, and unintentionally. Any statement, no matter how exculpatory it may seem on its face, can be used to crucify you all by itself. If the police are either willing to lie (though that’s not likely), or if they simply have an innocent misrecollection of the details regarding what they did and did not tell you before you shared your own account, it can lead to complications. All of these problems, by the way, can be avoided if you take Justice Jackson's advice and say, "Thank you very much, your offer is appreciated, but no thanks."

How about this one? Here we go. Now, here's the most surprising of all: save the most surprising one for last. Let's suppose you've got the following scenario.

Your client is thinking about talking to the police. He says, "I've got nothing to hide. They think that I killed somebody in Virginia Beach last night." 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 gas with a credit card.

I used cash, so I've got no witnesses who can prove I was there except for my word, and of course, Mama, for what that's worth, which is nothing. So, your client says the police want to talk to me, and I want to seem cooperative. What I'll do is tell them that I was in the Outer Banks last night. Now, there's nothing incriminating about any of that on its face. Let's assume, by the way, that you believe, with all your doubt, that you've given your client a polygraph exam. You've given your client a polygraph exam.

You've known him for years. You've been attending the same Bible study for 30 years. You know beyond a shadow of a doubt that he is telling you the truth, and he is not admitting anything. He is not admitting to any motives.

He's not admitting to the opportunity. He's not admitting that he was there. How on earth could this come back to haunt us? How on earth could this 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 call on you, right? 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 this: this is the last point. I think it's almost certain that even if your client is innocent and only tells the truth, and doesn't tell the police anything incriminating, the entire interview—questions and answers—will be videotaped. Even his truthful answers can be used to crucify an innocent man if the police, through no fault of their own, end up in possession of any evidence, even mistaken and unreliable evidence, suggesting 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 go ahead and meet with the police. I think I have nothing to hide. I tell them, "I was in the Outer Banks last night, officer." How can that 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, an unimpeachable 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.

Hell, if she's all they've got, I'll get this case thrown out before trial. But if, like an idiot, I talked to the police and told them the truth—that I was in the Outer Banks—and now, lo and behold, tragically, it turns out they've got a witness; a false, mistaken, confused, but sincere, incredible witness who can testify that I was here at Virginia Beach. Now they're likely to get a conviction. Because what they'll do is turn this cop and this woman into the government's star witnesses. They'll put her on the stand; hell, they'll have Officer Brucon testify about how my client lied to him about being in the Outer Banks. Then they'll bring in this girl, who otherwise would not even have helped with her case at all, to testify, "No, that's not true; that was a lie."

I saw Mr. Duane's client here in Virginia, an hour before the robbery, not far from the store. By herself, she would not have helped the government, but what I have just done, you see, is given them the other part of the puzzle. And now I'm doomed. Just ask them. I close with this example.

Here we have a couple of recent celebrity examples of why it is that even people who admit nothing always end up regretting it. I mean, sorry, they always end up regretting it. On the left, we have Martha Stewart. She was the victim and subject of an extensive government investigation that looked into the possibility that she was guilty of violations of certain federal laws, including securities laws and fraud. Kinds of things.

They couldn't pin that on her, but they were able to get a conviction because she denied it. Talking to the police and later to some of the shareholders, she said, "No, it's not true. I was not guilty." So they charged her with lying to federal investigators, and they secured a conviction. She was sentenced to five months in prison. Marion Jones, on the right side, is another person who would likely still be out today if she had always taken the advice I’m giving you now. She was asked if she had ever used steroids, a controlled substance.

And instead of taking the Fifth, she said, "No, I never took steroids when I won those Olympic gold medals." It turned out that she was lying. She worked out a deal, pled guilty, and admitted that she was lying.

And she, over her strenuous, tear-filled objections, even though she has two young children, was just recently sentenced to prison for six months. The guy who sold her the steroids, the pusher, received 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 recently pled guilty, as you know, to charges related to the operation of a dog fighting operation at his home, faced a harsher sentence than he might have otherwise received. At sentencing, like many other criminal defendants, one of the reasons his sentence was more severe was that the judge noted he initially lied to the police, saying, "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 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 will be time enough to put our cards on the table, but before we get there, I haven't seen what the police have gathered yet. They may have mistaken and confused witnesses who will contradict even the truthful things 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 sealing our demise. So keep your mouth shut. Don't answer any questions. Let's plead the fifth. You'll be glad that you did.

God bless America. God bless 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 have no idea what he's going to say, but it'll be interesting.

Here, let me give him the microphone. Let's give him a hand. Officer George from the Virginia Beach Police Department. I cannot talk that fast, not even during an interview.

I'm going to take the podium here, Professor, because I took notes on some of the things you said. Everything you mentioned was true. It was right, and it was correct.

And I'm just going to give you a few ideas. I'm going to tell you a few examples, but first, I'm going to provide you with a little information. As was mentioned earlier, I've interviewed thousands of people. I've interviewed individuals from foreign police departments. When I was in the Navy, I worked in law enforcement and served as a criminal investigator.

Thank God we're in the United States. I was in law enforcement and served as a criminal investigator. Thank God we're in the United States, because most interviews in Italy, Spain, and so forth start out physically, okay? There's no police abuse over there. They can do pretty much what they want, anytime they want, anyhow they want.

So just be aware of that and be thankful for yourselves. The biggest question I was asked when I first started is: I am a 3L, and there are some of my classmates here. The best day is coming up on May 10th, when we get to leave. For those of you who are applying, I've told a couple of people this: you think it's hard getting into law school? Try...

Try getting out. A couple of things I was asked: How do I quit getting speeding tickets? It's a 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? Did anyone go above 55 on the interstate? Did anyone drive at home and exceed 55 on the interstate?

Because if you stay... What are you making your hands for? I told you, don't. I know, I know. I remember, but I was doing it anyway. I was doing it anyway.

I did it intentionally. And there you go. People aren't inherently honest, and that's their biggest downfall. 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 going to do is meet the person behind you because they're going to rear-end you, and you’re going to get run over. That's a fact. But everybody does something that they can get in trouble for. When I was a police officer in uniform, I could follow a car for as long as I needed to, and eventually, they’re going to do something illegal, and I can pull them over. It’s justifiable to pull them over for that.

So just be aware of that. Don't think you're so innocent in such matters. When you get stopped for a traffic ticket, everyone likes to be somewhat honest. And what's the first thing the police officer asks you? "Do you know how fast you're going?"

If the speed limit is 35, you'll say, "Oh, 38, 40," because you want to be somewhat honest even though you're actually going 50. You just admitted to breaking the law. You just confessed.

They can go to court with that confession that you were exceeding the speed limit. Okay, so you need to think about those things. When you do become defense attorneys—which I may, who knows—you need to consider these aspects for your clients. The other thing you need to keep in mind about your clients, and this may sound very blunt, is that people can be foolish. Your clients can be foolish. I've had defense attorneys come to me...

As a matter of fact, one attorney on a motion to suppress came up to me just Tuesday and told me his client was stupid. Okay? They're very straightforward. They do foolish things. They talk to the police.

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 arrested and dealt with over 1,000 felonies. Well, actually, more than 1,000 felonies. Probably about 2,500 misdemeanors, with a 98% conviction rate. For 80% of them, I don't even have to go to court.

Why? Because there are confessions. Because they confess. These people have no problem. The hardened criminals have no problem talking to the police.

People like to tell their stories. They will sit in that room and think about it. You get picked up by the police. You’re in a small room. There’s one chair here, a desk, and another chair.

What's the thing you want the most at that moment? To get out of that room. To be out of that room. I think the police officer's shift is ending in 15 minutes. Does the police officer want to get out of that room?

My overtime rate is $58 an hour. Do I want to get out of that room? I have no problem. I'll stay there for 10 hours. I'll take that $580.

So I have no motivation to want to leave. You do, and that's how we get you to try to talk. I have my job. My job is to develop probable cause, build a solid case; a great case is one with a confession. Let's get it done.

To the Commonwealth's Attorney, so that they can prosecute the case with little, if any, effort. The Commonwealth Attorneys love those cases, with little, if any, effort, because they come with a stack of files that high in court every day. That’s my job. The defense attorney’s job is to hope they get to their client before I do and make sure they don’t talk to me, no matter what.

I'll give you an example that aligns with what Professor Duane was presenting in 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 with them? No. You were in a car with all this stolen stuff in it? You had nothing to do with it? No.

You knew it was there? Yeah. Okay, now we've got possession of stolen property, a felony. But you had nothing to do with it?

No. So, what did you need the money for? Well, I had to pay some of my court costs from another issue I got in trouble for. Oh, so he took the money from stealing the items. I have enough to charge him now with burglary.

Simple as that. Well, did you see the picture on that camera? It was of the house with the Christmas decorations. This is a real case scenario. Yeah, did you go inside that house?

No, I didn't go into that one. There are ways around it. There are ways to get around people who try not to talk to you. And again, as Professor Duane said, if you wanted to say you wanted to go into a boxing match, it might be $100 if you win. But you've never boxed before.

You have to face someone who’s an Olympic boxer. You're going to lose. You're going to face someone who has been interviewing people for, in my case, 28 years. You're going to lose—unless you're purely innocent.

Now, on the other side of it, I don't want to put anyone who is innocent in jail. However, I try not to bring anyone into the interview room who is innocent. There are a couple of individuals that I have allowed to walk away because they were innocent. Okay, the interviews. How do we approach the interviews?

There are a number of ways to approach interviews and various types of people I deal with. The first thing I ask is, does anyone know what they are told first when they are in an interview? The Miranda warning.

Okay, it's not a right. You don't have a right to Miranda. Those rights have always existed; it's called the Constitution. You're just teaching.

You're doing a really quick class on the Constitution for these people. Usually, they don't pay attention to it. This is the way I give my Miranda warning: "Look, I have to tell you this, so 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 of law. I don't have to say it will be.

I say it may be. Okay, and they understand that. You have the 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 stop talking to me at any time and exercise these rights.

Do you understand that? Sure. Now, before I do the primary thing that's needed with those rights, which is to get a waiver, I want to say that before you say anything, let me tell you what I know. Over all the time I've had to piece together what this individual was supposedly involved in—and I only say supposedly because Professor Dwayne is sitting over there—I will tell the story that I've put together, and it will be pretty close to what happened. I can see that it's pretty close to what actually took place.

And I can see that it's pretty close to what happened because that individual starts slumping down in their chair, and they'll put their hand in 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, and asked, "Do you want to talk to me?", they would say no. So I give them the time to think about it, and then comes the next phrase. Now, before you start talking to me, let me tell you the difference between a lie and the truth.

If you lie to me, and I appear before the judge, and I tell the judge that you were dishonest with me, that will not make them happy. However, if I stand before the judge and say that you are honest, straightforward, and willing to take responsibility for your actions, that will help you. That is not a lie; it is true in Virginia Beach courts. It will benefit you.

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. Then I have to determine what kind of person I have, and there are two types.

There’s the one, like I mentioned to you earlier, where I have to talk to them about different things, get into their own skin, as the phrase goes, and try to get them to open up and discuss things. I had a sexual assault case where I had to talk to the guy about how attractive the woman was, and I understood where he was coming from. When I said that, we became friends, and he started talking to me.

And he's still sitting in prison. So you've got to get in there, and you've got to go places. The other side is, I can't try and act like that individual acts. I can't try and act and talk like him, what we lovingly call a "hood rat."

Because I'm an older white guy, we don't talk like that, and that would be an insult. You can't insult people; it doesn't matter who they are or where they grew up.

It doesn't matter where they're from; you can't insult people like that. You have to be yourself. You need to get into their mindset and understand the way they're thinking in order to have a meaningful discussion with them. The other type of person is the one who likes to tell a story.

This young man, a great man, I love him to death. He didn't go to jail because I advocated for him; I felt sorry for him. He was a newlywed facing financial difficulties and was a former Marine.

I said, "Tell me what happened." He shared with me a beautiful story about his experience. He explained that he had taken a piece of equipment from his former employer. He described the lovely tale of how he found it on the side of the road and all the events that followed. I didn't even question his actions.

After he finished his whole story—very implausible, but a very beautiful story—I sat there and listened to it for 15 minutes. I looked at him and said, "You stole the stuff from your boss, didn't you?" "Yes, sir, I did. I had nothing. I really had nothing."

Except for the fact that he had sold it. So there are those types of people. And then there's the third type: the one who tries to act tough, who tries to be a criminal but cries like a baby when they walk into jail. Yet, when they're on the street, they're as tough as rocks. You go in there with your paperwork, you sit down, and you just start doing paperwork. Usually, I have a videotape sitting on top of it, just for good 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 "uh" or "hmm" while they're talking, because they need to fill that void with something. People really dislike silence. So, that's another point.

So that's another way to look at it. You can see how there's an uneven playing field here. Even with the most educated individuals, there is still an uneven playing field. If you talk to the police, everything will be documented. If you get pulled over for a ticket, they issue you the ticket, and then you drive away.

Have you ever seen a 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 going to come into court if you go to court. Everything that's 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 knew it was recorded. I get many, many confessions over the phone. Okay, back to the people. Yes, they're foolish. Okay, people are foolish.

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."

He was going to Tidewater Community College, specifically to the law school there, I suppose. He was the partner of the one I told you about in the interview just a little while ago, where I asked him what he needed the money for. He was his partner, and he was very smart.

So he thought. He believed he was a very intelligent individual. I ended up arresting him five times at his house. His mother hated me. She liked me the first time.

She apologized. She didn't really like me much the second time. I reached a point where she truly 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 doing so, he let it slip that he doesn't sell stolen items to pawn shops; he sells them to flea markets because they do not have to report to the state.

I know how to drive to a flea market just as well as anyone else and look for the items I'm searching for. He was trying to impress me with his ability—his ability to be smarter than I was—and he confessed that people are inherently stupid, especially criminals. Now, don’t get me wrong; there are some very intelligent criminals out there, and most of them work in really big office buildings and wear suits.

Yep, she went to jail. Is she hurting? No. But there are some very intelligent street criminals out there who get other people to do their bidding and so forth. People are afraid to turn on them. However, there are also some very foolish people.

Just a couple of other things. I usually work with younger people, typically between the ages of 16 and 25. I try not to deal too much with juveniles, but once they’ve talked to me, it becomes a different situation. Now, let's back up a little bit. You don't need a recording in court for a statement. As Professor Duane said, it's his word against my word if he were the defendant.

Number one, this is how it works in the real world, in case you haven't been out there—that's outside the windows. The jury looks at a defendant sitting next to a defense attorney. That's strike one, because the jury is already looking at that person as someone who did something to put them in that chair. Number two, they bring up a uniformed police officer. They also bring in someone wearing a suit.

Detective up there is a professional witness; that's strike two. Now they have a professional witness against them. 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. They have all those strikes against them. I know you're innocent until proven guilty, but it's a jury of your peers.

The perception is that if you're sitting next to a defendant, you have to prove your innocence. This is the perspective of many jurors. No matter how many jury instructions they receive, they still perceive that person as a hoodlum or a criminal. Additionally, no matter how hard some defense attorneys try to dress their clients in suits and present them well at the table, if the trial is lengthy, those clients often revert to their old ways. They start acting and speaking in a manner that is not beneficial for their case. You don't even need a recording to see this happen.

During my suppression hearing, a statement was being challenged for suppression because I recorded a confession or an interview. We do not conduct interrogations, as the police do; we conduct interviews. That term, "interrogation," carries a negative and harsh connotation. We use the term "interview," and you would be amazed at how much difference it makes when you use that one word instead of "interrogation." I will take the recording off the tape and have my secretary transcribe it. Immediately afterward, I will scan that tape over my magnet, throw it in my box, and prepare to use it again.

I do not keep the tape. It is not evidence, and it is not required to be evidence. It exists; 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. During the suppression hearing, he tried to suppress that. After I testified, the defense counsel stood up and said, "Well, Judge, I really don't have anything to say." The judge, Judge Canada, responded, "Motion denied. Let's move on and go to court."

So, you don't have to have recordings or videotapes. The police videotapes are just extra. If you have that police officer sitting there testifying, you don't need the videotape. You have the person who was right there to tell you what happened.

But it's always nice to have those extra things. What I do for these young people is I say, "Look, the person whose house you broke into is very upset. They're very angry because you sold their belongings to the pawn shop. They may never get their stuff back. They want you to go to prison. They are very angry."

They want you to go to prison. They may want to lessen that. This is the start of what’s commonly known as a lie, because we are allowed to lie in interviews. To mitigate this, you might want to make them happy. The reason it's a lie is that when it is a felony in the Commonwealth of Virginia, the victim has nothing to do with the prosecution or how long the offender goes to prison, or any related matters.

We're prosecuting them, not the 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. Well, how do I write it? In your own words, just write, "You know, I'm sorry for what I did."

"Then," I said, "you know, when I broke into your house the other night." Whatever. They write it out, sign it, and I sign it as a witness.

I put the date and 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 for them to sign.

In their handwriting, a written confession. Is that person going to get convicted? I have never seen someone not get convicted based on an apology letter. So, in support of Professor Duane, everything he says is right. That's what I do.

Now, to take away the support, I don't try to send innocent people to jail. That's it. That's all I do.

That's all I have. Any questions or anything like that, sir?

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