Attorney Scott Campbell

Criminal Defense Attorney

Category: Cop to Lawyer

A New Reason You Need a Lawyer When Talking to the Police

Most people think they have a Constitutional right to remain silent.  That is close, but the correct right is not to be compelled to be a witness against oneself.  The Supreme Court made that right clearer when it required police to tell people under arrest that they have the “right to remain silent.”

But, what if you are not yet under arrest?  What if you don’t answer police questions, but just choose to say nothing?  Can that be used against you?  Well, what the Supreme Court gives, they also take away.

In a recent case (Salinas v. Texas for those of you who want to read it), the Supreme Court said you have to not answer questions in a specific way in order to not have your silence used against you.  If you just remain silent, a prosecutor can later tell a jury to infer that you are guilty because you remained silent.  That is, unless you say you are not answering because you are claiming your 5th Amendment right not to say anything.

Confused??  That’s the point.  The Supreme Court has made a simple right not to say anything to the police, and not have it held against you, so difficult that you need to have legal training to understand how to do it.

Specifically, The Supreme Court now says it is a “simple matter” to say that you are “not answering the officer’s question on Fifth Amendment grounds.”  Right.  Lawyers and judges debate what the 5th Amendment means, but it is a “simple matter” for ordinary citizens to know when the 5th Amendment applies, and how to correctly assert the rights it contains.

Again, rights we fought a revolution for are being eroded.  The lesson to be learned is to get a lawyer before talking to the police.  Just refusing to talk can be as bad as saying the wrong thing.  Make sure you are staying silent the right way.

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Do Cops Lie?

Of course they do.  Everyone lies at some point, even if they justify it as a “little white lie.”  Cops are no different, though they want to be thought of as somehow above being human.

I break down the lies cops tell in three categories: the outright lie, the situational lie, and the unintentional lie.  All are just as bad when someone’s freedom is on the line, but it helps to understand the motivation for the lie so an attorney can counteract it.

The Outright Lie.  I have seen this.  It can be the planting of evidence.  It can be the lie that cannot be disproved.  It is intentional, and justified as “he is bad, I am good, and he deserves to be punished because he is bad.”  It is intended to convict someone who has done nothing but attract the attention of a cop who thinks he is a bad person.  It happens more than even police departments think it does.  It happens because the people who do it plan the lie, swear to the lie, and it can’t be disproven.

The Situational Lie.  Police sometimes lie on purpose.  They will tell you they lied and they are allowed to.  Actually, the Supreme Court of the United States has approved a lie in pursuit of the truth.  Frazier v. Cupp, 394 U.S. 371 (1969).  They will tell you that a lie in pursuit of the truth is a “good lie.”  They justify lying because, in their mind, the ends justifies the means.  I think this is just as wrong as the outright lie.  It turns the cop, who is entrusted to tell the truth, into a liar—whether intentional or not.

The real problem comes when they are testifying in court.  Can they turn it off?  Can they admit that they lied while they were doing their job?  It is human nature to say “I always tell the truth, that is why you can believe me now.”  It is much more difficult to admit to lying, then say “but now I am telling the truth.”

The Unintentional Lie.  This one is usually chalked up to different people seeing the same thing and having different points of view.  It involves shading words, hedging on accuracy, and presenting something that can be seen in two ways as absolutely one way—obviously the one that convicts the person on trial.

This lie is the hardest to deal with.  The argument will be “hey, they just see things two different ways.”  But what happens when your side is absolutely true, and the cops testimony is of this type.  It crosses over to the situational lie.

The end result, no matter how it is characterized, is that cops lie.  The next step is to deal with it.  The best was is not to even talk to the cops. (see the post below titled “Don’t Talk To The Police!”)  But, if you just can’t resist talking to someone whose sole purpose at that moment is to put you in jail, at least record the entire conversation.  Don’t rely on them to do it.  All they have to do is say they didn’t record it, or they thought they did but the recorder malfunctioned.  They will lie then lie about lying.  Record it, download it, and email it to your attorney or yourself so it doesn’t disappear.  From an attorney’s point of view, there is not much more satisfying than cramming a lying cop’s words down his throat.

The Failed Attempt To Outlaw Drugs

I read this article by John Stossel.  (edited for space)  It states my opinion of the “war on drugs.”

 

Forty years ago, the United States locked up fewer than 200 of every 100,000 Americans. Then President Nixon declared war on drugs. Now we lock up more of our people than any other country — more even than the authoritarian regimes in Russia and China.

A war on drugs — on people, that is — is unworthy of a country that claims to be free.  Unfortunately, this outrage probably won’t be discussed in Tampa or Charlotte.

The media (including Fox News) run frightening stories about Mexican cocaine cartels and marijuana gangs. Few of my colleagues stop to think that this is a consequence of the war and that decriminalization would end the violence. There are no wine “cartels” or beer “gangs.” No one “smuggles” liquor. Liquor dealers are called “businesses,” not gangs, and they “ship” products instead of “smuggling” them. They settle disputes with lawyers rather than with guns.

Everything can be abused, but that doesn’t mean government can stop it. Government runs amok when it tries to protect us from ourselves.

“Our discomfort with the idea of heroin available at drugstores is similar to that of a Prohibitionist shuddering at the thought of bourbon at the corner store. We’ll get over it.” – John McWhorter

Drug-related crime occurs because the drugs are available only through the artificially expensive black market. Drug users steal not because drugs drive them to steal. Our government says heroin and nicotine are similarly addictive, but no one robs convenience stores to get Marlboros. (That could change with confiscatory tobacco taxes.)

Are defenders of the drug war aware of the consequences? I don’t think so.

John McWhorter, a senior fellow at the Manhattan Institute, indicts the drug war for “destroying black America.” McWhorter, by the way, is black.

McWhorter sees prohibition as the saboteur of black families. “Enduring prison time is seen as a badge of strength. It’s regarded (with some justification) as an unjust punishment for selling people something they want. The ex-con is a hero rather than someone who went the wrong way.”

He enumerates the positive results from ending prohibition. “No more gang wars over turf, no more kids shooting each other. … Men get jobs, as they did in the old days, even in the worst ghettos, because they have to.”

Would cheaper and freely available drugs bring their own catastrophe? “Our discomfort with the idea of heroin available at drugstores is similar to that of a Prohibitionist shuddering at the thought of bourbon at the corner store. We’ll get over it.”

The media tell us that some drugs are so powerful that one “hit” or “snort” will hook the user forever. But the government’s own statistics disprove that. The National Institutes of Health found that 36 million Americans have tried crack. But only 12 percent have used it in the previous year, and fewer than six percent have used it in the previous month. If crack is so addictive, how did 88 percent of the users quit?

If drugs were legal, I suppose that at first more people would try them. But most would give them up. Eventually, drug use would diminish, as it has in Portugal, which decriminalized all drugs, and the Netherlands, which allows legal marijuana. More young men would find real jobs; police could focus on real crime.

If we as adults own our own bodies, we ought to get to control what we put in them. It’s legitimate for government to protect me from reckless drivers and drunken airline pilots — but not to protect me from myself.

Don’t Talk To The Police!

It happened again.  A person called me to ask if he needed a lawyer.  He explained that he did nothing wrong, but a detective wanted to talk to him about a crime.  He did like most people would do and went to the police station and answered the detective’s questions.  It was the wrong thing to do.  We’re raised to respect police officers and think they are our friends.  When they are looking into a crime, they are not our friends.

How do I know this?  I was there once.  I spent many years as a detective calling people and convincing them it was in their best interest to talk to me.  I was smooth.  I was polite.  It was, in legal terms, BS.  I, like detectives now, was aiming for the goal in any investigation – clearing my case by arrest.

I have heard it called Million Dollar Legal Advice; it is true.  Don’t talk to the police!  You can say nothing to help yourself.  Anything you say can and will be twisted to fit what the detective needs to show to get the arrest.

In all my years as a detective, I only had two occasions when a defense attorney allowed me to talk to their client.  On one of those occasions, I went to the attorney’s office and he commented that he could not believe that he was letting his client talk to me.  It worked out best for his client because no arrest was made, but it was a decision that only a defense attorney should make after considering all angles.   The other occasion involved a highly respected attorney and a high-profile client.  To this day I still don’t know why the attorney allowed the interview.

Your attorney can say the same thing to the police that you can and it can’t be used against you.  If you say it, it can be used against you.  So, again, because I can’t repeat it enough.  Save yourself problems of your own creation.  Don’t talk to the police.  Talk to an attorney first.  The police are not on your side, an attorney is.

How Can I do It?

I am often asked how I can represent those accused of crimes after I spent so many years as a police officer.  The answer is twofold – I believe the Constitutional rights of people are being eroded and I believe some police officers abuse their authority.

Our Constitutional rights, in my opinion, are the most important aspect of being an American. Our forefathers fought a war to guarantee them and protect people from government.  Since then, and especially in the past few decades, Congress, legislatures, and the courts have marched ahead with laws and court decisions that have eroded those rights in a misguided attempt to punish all “bad people” with little regard for the privacy of the general public.  The most significant encroachment in our rights is the reduced protection we have from unreasonable searches.  The law seems to be constantly changing giving the government, through the police, more and more legal ability to search people and their possessions in an effort to discover illegal activity.  What this does, however, is allow more and more searches that find nothing because there was nothing to be found.  I simply believe that the attitude of “if you don’t have anything to hide, why should you mind me looking” is wrong.  I am committed to be part of the resistance to this destruction of our Constitutional rights.

I know that police officers are entrusted with a great deal of authority and more power than any other actor in government.  They have the power to take away your freedom by arresting you.  They have the power of life and death with no prior review of their actions.  I know that while most police officers are honest, hardworking people, some are on a crusade to try to punish everyone who commits even the smallest infraction. Those crusading  officers will do anything, legal or illegal, to do that. But more than that, even the ones who consider themselves honest will occasionally bend the rules (our Constitutional rights) because they think a small violation of someone’s rights is justified in the pursuit of discovering what they think is obvious criminal activity. This “bending of the rules” is just plain wrong.  Yes, some people commit crimes, even horrendous crimes.  But when rights and laws are violated in the pursuit of arresting those who may be committing crimes, the ultimate result is a police state where no one has any protection from government or its agents.  I believe that, if there is no “push back” against this abuse, our rights will slowly but surely disappear.