One of the cases of which I am most proud is a case involving a prominent man who was never arrested. Police had questions about his conduct. He contacted me. We answered the questions and provided details. Had we circled the wagons and told law enforcement to take a hike, the man would most certainly have been arrested. Although I am confident he would have been acquitted at trial, the allegations would have destroyed his reputation. The case raises a difficult question: When should you talk to the police?
First things first: An unrepresented person should not talk to the police. Period. That leaves far too much to chance. You have a right to remain silent, and a right to obtain counsel. Use those rights. Police officers are trained on interrogation techniques and have no legal obligation to be honest. You are not trained and, when confronted with an authority figure, will most likely be compelled to be honest, even if it is against your interests. People confess all the time out of the misplaced belief that confessing to a cop is good for the soul. Repeat after me: Cops aren't priests; the soul is not their watch.
But suppose a detective knocks on your door and wants to talk. Or that your receive a target letter from the federal government informing you that you are the focus of a criminal investigation. That's when you should immediately lawyer up. It is sometimes the case that timely and quick intervention by a lawyer can spare you the trauma of an arrest.
Most often, once the police come calling, the decision to arrest has already been made. You are being visited by an officer looking for icing on the cake. Confessions are, after all, solid evidence in most cases. But suppose you've done nothing wrong. Or that even if you have broken the law it is not in the manner or to the extent that the authorities believe. In these cases, a lawyer can do you a great deal of good.
Not long ago, a young man came to see me. He was accused of molesting a niece. He told me he had already spoken to the police, but had denied the misconduct. I predicted an arrest. The allegation of one victim, however old, is enough to prosecute. I regretted the decision of the young man to speak to the police. "A weak case is often bolstered by corroboration of the inessential," I told him. I contacted the police and told them to have no further contact with my client.
Months passed and there was still no arrest. Then an unexpected call. There would be no arrest. The complainant was not found credible. My client's statement to the police helped focus the investigation.
I realize the last two paragraphs undermine, rather than support my premise about needing a lawyer. I view the case as a rare exception to a rule too often proven by a high conviction rate among those who talk to police. While I won't be a slave to consistency when experience is teaching, I am still prepared to play the odds: Lawyer up.
In the federal system, where investigative grand juries can grind away in secret for months before you even know you're in trouble, you should seize the opportunity to engage the government. An ambitious prosecutor looking to make a name on your back will send agents trolling through your bank records, your associates, your friends, your enemies, your former colleagues and clients. Some of these people have reasons all their own to malign you: some will speak nuanced half-truths; some will lie. You want to learn about these things before you are indicted.
But what about the right to remain silent? Sure you can assert that, and you can tell the police to go enjoy some safe sex by, er, well, f*2king themselves. "I'll see you in court," is deeply satisfying bluster. But far better to avoid court if you can. Bad things can happen there.
I am not bashful about asking federal prosecutors for what I call a "show and tell proffer." A client and I will meet with a prosecutor and federal agents. We will strike a deal. Nothing we say or do, including facial gestures, will be used as evidence against my client.We will simply sit down and listen to a brief overview of the case contemplated against my client. In such instances, the government doesn't show its complete hand, but it shows enough to permit you to determine what's coming.
Suppose you hear the government's claim and know it to be false or filled with misleading half-truths. At that point, you can negotiate a proffer: You can waive your Fifth Amendment right to silence in exchange for a commitment not to use your words against you. In other words, you can answer questions that may divert the prosecution. This is an extremely risky move and should never be done without counsel. First, you can be prosecuted for lying during the proffer, so don't. But there is a deeper and more subtle danger: In most parts of the country, case law holds that if you commit to a theme in a proffer -- some other dude did it -- you and your lawyer are bound to that theme at trial. Thus, a lawyer who argues against what his client said in a proffer, opens the door to the use of the client's proffer. I hate that rule of law, but it's there. So be careful.
The sad fact remains that in most cases by the time you receive a target letter the indictment decision is already made. The feds may be reaching out to try to scare you into cooperating against another witness. Or they may think their case is so strong they want to overwhelm you into pleading to charges without an indictment. But there are cases in which knowledge is power and where you can strategically intervene to avoid prosecution.
I've been neck deep in discussions for the past several weeks with the feds seeking to avoid indictment of another client. Thus far, we've learned plenty about the government's claims. We have effectively rebutted some, forcing the government to reassess. I remain guardedly optimistic that the government will not indict, but am preparing, as is my client, for the worst. Along the way, I am learning more and more about the government's claims, and, should the case go to trial, will be better prepared to defend.
Discussions between your lawyer and prosecutors are not admissible evidence. If it is too risky for you to talk to the government yourself, your lawyer can represent your position in private discussions that will almost certainly not be admissible as evidence. Again, a strategic word might divert prosecution; in the worst case, your lawyer learns the government's case.
Machiavelli once counselled keeping your enemy close. Negotiating with the Devil is tricky business. But once you smell his sulphur, it's time to ask questions, and, perhaps, to answer a few in a form that will not come back to haunt you. I know of several people whose reputations and liberty were salvaged in such discussions. I count those cases as silent victories.