Hey folks,
Welcome to today’s Law of Self Defense Members-only content! A few days ago we shared with you the video and audio versions of our debunking if the popular YouTube video, “Don’t Talk to the Police,” which you can find here:
Debunking the “Never Talk to the Police” YouTube Video: Part 1
Debunking the “Never Talk to the Police” YouTube Video: Part 2
At the time I promised all of you a transcript of that content, as well, for those of you who prefer to read rather than view video or listen to the podcast.
Unfortunately, I dropped the ball on the transcript, until I was reminded by a Member today, so my apologies for that.
The good news is we always do our best to fix our errors, so here’s that transcript for all of you, embedded below. All the “quote” outtakes in the transcript are meant to indicate the portions in the debunking where it is Professor Duane speaking.
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TRANSCRIPT: Debunking the “Don’t Talk to the Police” YouTube Video
Welcome to the Law of Self Defense Podcast for August 30, 2017.
In this podcast, we debunk the YouTube video entitled “Don’t Talk to the Police.” I am attorney Andrew Branca. Now you may be familiar with the YouTube video, it’s quite popular may have millions of views, entitled never talked to the police. It was a talk given by Regent law school Professor James Duane, I believe he gave this talk in March 2012. That’s the date attached to the YouTube video.
Now, I originally addressed this video and its contents back in 2014. But I’m re sharing it again here because it’s been quite some time. This podcast will be about 60 minutes long. What I’ll do through the process of the podcast is share with you a portion of Professor Dwayne’s talk that he put on YouTube, and then my perspective on that particular portion of the talk.
[Deleted promotional content.]
Many of you will be familiar with the YouTube video, don’t talk to the police. It has something in excess of 4 million views [AFB: Approaching 10 million views as of December 10, 2020]. So it’s been seen quite a lot. It consists of two talks given purportedly at a law school or the location of the seminars never indicated.
And the first speaker is this attorney and his identity is never made clear [AFB: Lawyer is later learned to be Law Professor James Duane]. So I don’t know who he is, where he might practice or anything about that. So this attorney gives a presentation on the subject of don’t talk to the police. I thought it might be interesting to folks to hear my take on how applicable the advice of this talk is to otherwise law abiding people who’ve had to use force and self defense and find themselves interacting with law enforcement as a result.
The theme of the talk is never talk to any police officer under any circumstances. And he is not shy about making that point.
I’m not ashamed to say I’m proud of the Fifth Amendment. And I’m not I’m proud to admit on camera and on the internet that I will never talk to any police officer under any circumstances.
So that’s his thesis. Let’s take a look. And I’ll share my thoughts as we proceed through his talk. What he’s really advocating is what’s commonly referred to as the say nothing approach. Say nothing to the police until you’ve had a chance to speak with an attorney and as a general rule of thumb for civil In interactions with police, it’s not necessarily a bad approach, it’s not necessarily unreasonable. But cases involving the defensive use of force have numerous characteristics that warrant limited exceptions to this general rule of thumb.
This lawyer, whoever he is [AFB: Law Professor James Duane], is speaking of the general case of interaction with police, he’s not talking specifically about self-defense driven police encounters. In the context of general interactions with the police, his statements mostly make sense with a couple of major exceptions that I’ll point out. But as a general rule, it’s poorly suited to self-defense driven police encounters for reasons we’ll talk about.
So the say nothing approach, as defined it’s that one should not talk to any police officer under any circumstances, except to say, I want my lawyer. The subtext of this is not talking to the police when your lawyer is not present, and perhaps not even then. Anything you say can and may be used against you in a court of law, there’s no question about that. And if you don’t say anything, then there isn’t anything that can be used against you, in theory.
In fact, that’s not strictly true, saying nothing. Maintaining your silence can be used against you until you’re Mirandized. Once you’re read your Miranda rights, your silence after that period cannot be used against you. But silence pre-Miranda, where a reasonable person would not have been silent, can certainly be used against you.
I’m an advocate not of the say nothing approach, because I think it has important limitations, but have the say little approach. Other advocates of this approach include Massad Ayoob, and really any serious defensive force instructor that I’m aware of. We argue that the say nothing approach has some advantages. We’ve talked about a few of them, but that these are outweighed by its disadvantages. Also saying nothing is simply impractical, in any literal application.
Our alternative is what we term the say, little approach. And we strongly believe that the notion that one must either be totally silent on the one hand, or have lager Ria verbal diarrhea, on the other hand, is a false choice. We believe in the judicious use of the Fifth Amendment.
If we’re attacked by someone on the street, we don’t simply shoot everybody on the street, we use force defensive force judiciously, only against the person who’s the aggressor attacking us. Even under the threat of a life-threatening attack, we focus our use of force on the person that attacking us we don’t wildly shoot everybody on the street.
In the same way, we can talk to the police judiciously using informed judgment. Even in the aftermath of a life-threatening attack. Proponents of the say nothing approach fail to recognize several unique characteristics of a self-defense event that drive important differences and how you should best interact with the police.
For example, self defenders call the police. In contrast, criminals have the police call them.
Self defenders do not seek to deny the use of force, we do not seek to preserve an alibi. We do not seek to avoid arrest. Self defenders have committed no crime for which lawful self defense is not a legal justification. Self defense cases are exquisitely fact sensitive and perishable. Exculpatory evidence must be identified are protected on the scene, or it’s lost.They also fail to recognize that there are at least three distinct types of police interactions that occur in the aftermath of a defensive force event. Each type of these involves a very different interaction with the police requires very different communication and for very different reasons.
The first is the 911 interaction. The second is the appearance of first responders on the scene as a consequence of calling 911. And finally, the investigators the detectives show up. Nobody, nobody advises talking to investigators without the presence of legal counsel. Everybody agrees on this point.
To the extent that the don’t talk to the police video is understood to mean don’t talk to the investigators without your lawyer present, it’s 100% correct. To the extent that they don’t talk to police video is understood to mean don’t even call 911 or don’t even identify perishable exculpatory evidence and witnesses in the context of a self defense event, it’s madness.
So to the video now, don’t talk to the police. This video raises a great many straw man arguments a straw man argument of course being an argument that’s not actually being made by anybody, but which is easy to defeat. So they make a straw man argument they defeat it and they look successful. The question is, are the strong man arguments relevant to a self defense force event that results in law enforcement interaction. They also provide the occasional not very credible anecdote. I’ll point those that as I get to them.
Straw Man #1: Don’t Give Police Detailed Explanation
So the first straw man argument of the video is that you should not give a detailed explanation. The lawyer who’s giving the presentation recites a lengthy detailed news story about a crime event. Later, of course, he will challenge the class to remember these details, which nobody in the class can do. Obviously, this is just a trick, a bit of showmanship.
First, a quick listening test. Let me read you something that was taken out of 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. Not fair to me, but I’m getting ahead. I’m giving you a warning that I’ll be quizzing you on this in just a few minutes. This will test 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 East Ocean View area, the apparent victims of a gangland style slang and possibly the victims of gang related violence. The police are investigating this as a possible murder and suicide but right now suspect that the three were all killed by the same individual. No suspects have yet been identified in the slang. 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 which were found by the department manager at about eight o’clock in the morning, appear to have been slain sometime earlier in the same evening, probably sometime between midnight and two 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.
Nobody, nobody advocates giving police any lengthy detailed explanations about the self defense event. In the absence of legal counsel. Nobody does this.
Straw Man #2: Police Will Just Make Stuff Up
The second straw man argument is that the police will simply make stuff up if you say anything to them. He tells an anecdote here of a lawyer who was accused of assault and then a police officer just made up false testimony.
There was a local news story here in The Virginian pilot just a couple of months ago about a experienced criminal defense lawyer who ended up getting convicted of criminal assault because he talked to the police. He was accused of having assaulted another attorney in the hallway. There were no other witnesses to this, a woman said that he grabbed you by the throat during an argument over a case. He denied it. at trial. It was his word against her. 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 I’m an attorney. I’m a criminal defense attorney. I’m savvy, I’m sophisticated. I’ve got oratorical prowess. I’m I’m accustomed to dealing with the police, by all means. And 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, I never touched her. The officer took to the stand and testified Well, when I met with him. He said he did put his hand on her throat but just as a joke that he had to take the stand again and say that’s not true. I never said that. I never admitted 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.
There’s no reason that police officer could not have made up the same false claim. Even if he hadn’t said a word. They’re both lies, right. He spoke to me. And he said he put his hands on her throat but as a joke. That could be said whether or not the lawyer said one word or 10 words or no words.
So it’s really unclear to me how the fact that the attorney may have spoken to the police officer had any impact whatsoever on whether or not that police officer was simply going to take the witness stand and makeup testimony.
Straw Man #3: Criminal Code Is Too Complex, Treacherous
Straw man number three, the Criminal Code is so complex that you really have no idea iIf you’re breaking the law, you have no idea what you might say that could get you in trouble. Whereas the police know exactly what words they need to hear to move a prosecution forward.
Here’s part of the problem. The heart of the problem is just as Breyer on the US 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 substitute 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 pages of the US code encompassing roughly 27,000 pages. Worse yet, these statutes often incorporate by reference to the provisions of administrative regulations. estimates of how many such regulations exist are even less well settled, although the ABA thinks there may be nearly 10,000 here’s an One of those 10,000 federal criminal statutes on the book that you probably never heard about. It’s called the Lacey Act. 16 USC section 3370 says it’s a federal offense for any person to import export, transport, sell, receive, acquire or purchase any fish or wildlife or plant taken, possessed, transported or sold in the violation of any law treaty or regulation of the United States or any Indian tribal law or any state or any foreign law. People have been convicted in federal court for violating the statute because they brought back a bony fish from Honduras not knowing that Honduran law, not American but Honduran law forbade the possession of the bony fish people have been convicted under this law because they were found in possession of a what’s called a short lobster, a lobster is under a certain size, some states forbid you from possessing a lobster, if he’s under a certain length, it doesn’t matter if he’s dead or alive. It doesn’t matter if you killed it or if you died of natural causes. It doesn’t matter if you have to do self defense. Did you know that did you know it can be a federal offense to be in possession of a laughter. Raise your hand if you did not know that. There’s the problem. And that’s only one of 10,000 different ways.
The say little approach only advocates you say what you’re inevitably going to have to say to claim self defense anyway. Your name, the location, I was attacked by that person, I was in fear for my life, I had to defend myself. There are witnesses, there’s evidence, I would like to receive medical attention. I assert my right to counsel, I assert my right to silence.
And the criminal acts that are involved or alleged in the self defense encounter are not obscure. If you were attacked, it was an assault or battery or an aggravated assault or battery or an attempted murder, or rape, whatever the case might be, but they’re not obscure criminal offenses that you would not have known about prior to acting in self defense. And hopefully, you’ve educated yourself enough about the law of self defense so that you’re on informed ground there as well.
There’s no self defense encounter in which you’re suddenly going to have been found to have acted illegally because you’re caught with a lobster that’s a little bit too small. Also, there’s no uncertainty about whether shooting someone is unlawful, absent justification. I’m sure we’re all very clear on this. If you shoot someone, and it was not in lawful self defense, you’ve committed a crime.
It’s not obscure, it’s not a bony fish. It’s not a lobster that’s too small. We’re all well aware that if you’re going to use force against another person, you have to have lawful justification for doing so. And hopefully you’ve read my book or attended a seminar or otherwise informed yourself about the laws of self defense in your jurisdiction. So you’re making these decisions on an informed basis, not out of ignorance of the law.
Straw Man #4: Talking to Police Won’t Prevent Your Arrest
The next straw man, argument number four, is that talking to the police won’t prevent you from being arrested.
These are the top 10 reasons I don’t actually really lie to you, I don’t have 10. I don’t have time for 10. 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 live in instinctively And naturally, suppose it can not help. There was no way it can help you. Plenty of folks think that it can’t and they’re always wrong. You cannot talk your way out of getting arrested officer Brooke, you’ve interviewed thousands of criminal suspects. Have you ever how many times in your experience Have you approached someone asked if you could ask them some questions because prior to the interview, you had some evidence pointing to as possible guilt and because of the extraordinary persuasiveness and eloquence with which he articulated his innocence. You said Oh, sorry, never mind, back on my bed. I won’t and you he got you out of arresting it. Never, never it never happens.
Nobody advocates that you talk to the police as a means to avoid arrest. If you shoot someone, even in lawful self defense, prepare to be arrested, period. The arrest is the least of your concerns.
Straw Man #5: Your Exculpatory Statements Can’t Help You At Trial
Straw man argument number five is that the police can’t repeat your exculpatory words at trial. The lawyer notes that hearsay is not admissible at trial. Hearsay being the repetition of words spoken by someone other than the witness testifying, to prove the truth of the words being spoken.
And contrary to what you might suppose if you never stick to 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 to 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 tried to call to the standard police officers, they obviously would you tell the jury what my client told you because what my client told him is actually good for my case. If you tried that a trial the prosecutor will object to that is hearsay, and the judge will agree the police will not be allowed at your request to tell the jury what your client told him and how good it may be for your case, it cannot help and then all of the good enough reason that ought to be reason enough to keep your mouth shut.
First of all, there are many exceptions to the hearsay rule. So it’s simply incorrect to make this blanket statement. Second of all the nine One recording is always admissible. So to the extent you’ve made the statements on the 911 call that we recommend those will be heard by the jury, your words will be heard by the jury. Third, nobody advocates that you talk to the police at the scene, in order that the police can repeat those words back to the jury. We’re trying to preserve perishable evidence in witnesses for trial, evidence and witnesses. We’re not trying to preserve our own words.
Straw Man #6: Actual Criminals Shouldn’t Talk to the Police
The sixth straw man argument is that criminals shouldn’t talk to the police. He argues that guilty people shouldn’t talk to the police, they should wait to negotiate a better deal down the road with their legal counsel.
And that ought to be good enough reason that ought to be reason enough to keep your mouth shut. But if you’re not persuaded, let me go talk about a couple of others. Number two, obviously, one of the most obvious if your client is guilty, as many of them are, but even if he’s not, even if he’s innocent, he may well admit his guilt with no benefit in return. Now, of course, many of you are thinking to yourself, well, 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. Yeah, sure, all those things are true. And like the rest of you, if I or anyone close to me is ever the victim of some sort of a 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, but what’s the rush friends, you don’t get to admit your guilt the first time they come by to meet with you. in federal court. 84 680 6% of all defendants plead guilty at some point for trial. If your client is guilty and really ought to punish, it really got to have a go through some sort of a cleansing act of contrition. fess up and admit his guilt, they’ll be plenty of time to do that. They almost always do. No need to rush No need to tell the police something, wait and see if we perhaps your client can work out some sort of an arrangement where maybe he’ll make some sort of compensation to the alleged victim or maybe he’ll be able to get some sort of a discount in a sentence. And you’ll be able to treat you’ll be treated fairly then like everybody else who had the benefit of a good lawyer who said please do not talk to the police. And don’t forget, by the way, even if even if your client only had bitch things that the police already knew, you might think well, what harm can I 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, it might hurt if the police officer becomes transferred to Minnesota or diseased or injured or comatose or cannot be located by the time of trial, the case will be dismissed if there’s no conviction. But if your client in which two things that’s confession is strictly admissible against him, it can be a basis for getting him convicted all by himself, instead. Officer Larry Craig [AFB: the speaker to follow Professor Duane] can explain all this to you.
Of course, we’re not criminals. If you are a criminal, you’re watching the wrong video lecture. If you are a criminal, I firmly advise you not to speak with the police under any circumstances.
But that’s not the audience we’re talking to. We’re talking to lawful people who acted in lawful self-defense against an attack. they’ve committed no crime that cannot be justified as an act of self-defense. So this issue simply doesn’t apply to the types of situations we’re talking about.
Straw Man #7: Don’t Falsely Confess to Crimes You Didn’t Commit
The next straw man argument is that you should not falsely confess to a crime you did not commit. And here the lawyer points out several cases in which genuinely innocent people, for some reason, confess to crimes they didn’t actually commit.
The Innocence Project of the United States has confirmed that in more than 25% of all the cases where an innocent man was convicted, and then later released from prison, after he was exonerated by DNA is 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 did they do that? He’ll tell us all about it, I trust. Here’s a couple of famous examples. You can just ask them. You don’t have to take my word for it. They’re on the left list Eddie Joe Lloyd. He was convicted in 1984 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 and convinced 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. The jury delivered in less than one hour before convicting him on the basis of this confession. 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. But after almost two decades in prison, he was released after DNA evidence proved that this man was innocent, and it falsely committed confessed to a crime that he did not commit. On the right is Ron Washington, who was released from prison just a few years ago here in Virginia, after spending 18 years behind bars for after being committed of a rape in a murder that we now know he did not commit after having been exonerated by dna evidence. But this man mr. Washington, who was in fact confirmed to be mentally retarded, was able to confess to several crimes at the request of the police, some of which we know he could not have committed.
What can I say. Don’t do that. Don’t falsely confess to crimes you haven’t committed. This has absolutely zero relevance to a genuine self-defense shooting, where you’re going to have to concede to your use of force anyway, simply to claim self-defense.
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Straw Man #8: Lying to the Police
Straw man number eight, lying and logorrhea [AFB: Diarrhea of the mouth]. Next, the lawyer points out that actually lying to the police, or running off at the mouth. Logorrhea can actually get you in legal trouble, who knew? bizarrely, this anecdote involves a totally innocent client, meaning a person who already has a lawyer and is speaking with the police well after the fact, after the scene after the events have completed,
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 he denies his guilt, and almost entirely tells the truth, odds are good. He will easily get carried away and tell some little lie or make some little mistake that will help him. This is human nature. He gets in there. It’s a stressful situation. Imagine a perfectly innocent client. The police say he’s been guilty of a murder. He’s totally innocent, as innocent as any one of us. So he goes in there he meets with the police. He says I don’t know what you’re talking about. I was nowhere near there. I 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 let that lead up. And that last line was a lie. He went over the top he was getting carried away. He got into the school he started saying all kinds of things. Almost all of them true that he knew we tend to exculpate himself, they got carried away just said one thing that wasn’t true. And unfortunately for him, they can prove that it wasn’t true. He may be convicted on that basis alone.
Nobody, nobody advocates speaking to the police without a lawyer present after the fact after you’ve left the scene or after you’ve retained counsel. Once you’ve retained counsel, you shouldn’t talk to anybody about the case without your counsel present. The say little approach merely seeks to satisfy the 911 imperative, the need to be the complainant, and identify and preserve perishable evidence and witnesses and that only happens on scene and before your lawyer could possibly be present. After that assert the right to counsel and the right to remain silent period.
Straw Man #9: Logorrhea
The next straw man, even if everything the person says is true, if they’re running off at the mouth, they can still say things that can be used to harm them. Here he notes that running off at the mouth, logorrhea, can get you in trouble even if you’re entirely truthful. And again, he illustrates this point with someone who already has legal counsel, I can’t emphasize it enough. If you already have legal counsel, you should not be talking to anybody without your legal counsel present. The only limited exceptions, the say little approach advocates is to preserve and protect that evidence on the scene. Also, this anecdote involves an actual denial of the criminal act alleged and then saying things that undermine that denial.
But let’s say you let’s say well, that’s not a problem. I’ll tell my client only to tell the truth is 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 you won’t be getting into trouble. Because even if your client is innocent, and only tells the truth, and doesn’t say anything that is false. Now already in mind, you were pretty well nigh into Fantasyland. The odds of this being anybody being able to pull this off are really quite slim, no matter how innocent they may be. But just to say let’s pretend, let’s assume he gives the police nothing but the truth and he is totally innocent. He will always give the police some information that can be used to help convict him. Always. For example, suppose you tell this to the police. Usually your client talks to the police in his denial of guilt. I don’t know what you’re talking about. I would I didn’t kill Jones. I don’t know who did. 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 who did I wouldn’t kill him. I’ve never heard anybody in my life. And I would never do such a thing. Let’s suppose every word of it is true. 100% of it is true. What will the jury here at trial? Officer Brooke, was there anything about this your interrogation, your interview with the suspect that made you concerned that he might be the white man? Yes, there was. He confessed to me that he never liked the guy. And then the prosecutor put that up in big letters. And we’ll say Ladies and gentlemen, the jury, it’s pretty clear that we’ve got the right guy here. We’ve proven that he was in Virginia Beach that night. That’s opportunity. And remember officer Brooke admitted that after extended question, 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.
In self-defense we are never denying the act alleged we are never denying the use of force we are conceding the use of force, but claiming legal justification in any case. Nobody is advocating either that you say anything with the very limited talking points we’ve mentioned, or that you talk with police alone after acquiring counsel.
So this scenario simply doesn’t exist in the self-defense context. After this, the lawyer follows up with a couple of court decisions that point out that self-incriminating statements can be used against the purported innocent defendant as well as against guilty defendants.
Well, of course, every defendant at trial is purporting their innocence. Even the guilty defendants are claiming to be innocent.
Straw Man #10: Submitting Yourself to Lengthy Interrogation without Lawyer Present
Straw man number 10 involves lengthy interrogations and police error. Here he notes that an interrogation of two or three or four hours will inevitably yield some words that can be made to look incriminating. He also notes quite correctly that the police may not accurately capture or recall what you say to them. To illustrate the difficulty of accurate recall, he uses that detail field new story from the start of the lecture.
Number five, even if your client is innocent, and only tells you the truth, and does not tell the police anything incriminating, which, by the way, is almost impossible to pull this off. I mean, imagine talking to the police for 234 hours, and somebody like him can’t somehow managed to extract from you something that can be used to convict you. That’d be extraordinary. I don’t think anybody’s pulled it off. But But even if you could pull it off, there’s still a grave 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 their pop quiz. I warned you about it. 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 advance notice that you would be quizzed on this. Question will start with a couple of easy ones. Remember that article I read you about it? How many people did the police find shot to death last night at that ocean view apartment that I told you about? A one B two c three d four who says a? b. c. Get this get there with a camera show skills? Move that camera? Look how many hands we’ve got there for C. Okay, D. You’re all wrong. Everybody who raised their hand. Everybody raised their hand. You are the kind of people who should never talk to the police under any circumstances as long as you live. Why is he not the right answer? By the way? You know, raise your hand? Yes. Excellent. I didn’t say anybody was shot. I didn’t say gun, bullet. Shooting. firearms. didn’t use any of those words. But I don’t blame you if you thought that I didn’t. This is the way the human mind works. We hear things we fill in details. I said gangland style slang that may or may not apply something but it doesn’t mean that anybody was shot. And that’s the problem. You see, even if your client is innocent, and only tells the truth and doesn’t tell them anything incriminating. And his statement is videotaped. His answers can be used to crucify him. You might say, Wait, how can that happen? I insisted to my insistence. I called the police and I said, Look, you want to talk to my client, you can talk to them, but only if you’ve finished yet the whole thing? I don’t want there to be any debate between the two of you over what happened. Okay, well 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 quote, I don’t know who killed Jones officer Brooke, with all due respect. I It wasn’t me. I’ve never touched a fired a gun in my life. How can that help incriminate this man? How could they possibly be used against this man to help convince them? You would think it’s inconceivable. But it’s as easy as pie. All the opposite has to do is read the stapler to the jury. And then the prosecutor says officer proof. 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 obviously returns to the jurors. And he 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 your client, your clients. Is that not true? That’s not true. I remember he was the one or one of the cops. I was with them for three hours. One of them in the car says something about they said they had a witness but I was the shooter. Okay, I’ll put you on the stand. And then your client testifies? No, no, no, they did tell me shooting and I mentioned they mentioned before I said anything about a gun they brought in the first and then the police said that’s not true. And now it’s your word against theirs for what? You’re gambling with your clients life. And police officers can very easily make a mistake like that, just as so many of you did just a few minutes ago about what you recall, having heard me say something about somebody actually being shot. Police make mistakes innocently, inadvertently, 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, not likely, or if they just have a innocent mis recollection of the details as to what they did and did not tell you before you told them what you said. All of these by the way, all of these problems disappear. If you take justice Jackson’s advice and say thank you very much opposite but no thanks.
Nobody is advocating that you subject yourself to police interrogation of any duration without a lawyer present. As for the police incorrectly recalling information, what information will you have provided that they could get wrong, using the same little approach? You’ve given them your name, your location, you said you were attacked, you were in fear for your life and you had to defend yourself. You’ve pointed out evidence and witnesses, you’ve asked for medical care, and you’ve asserted your right to silence and your right to counsel. It’s hard to see how that any of that can be interpreted in such a way as to end up being incriminating. I mean, are the police going to get the witnesses wrong that you pointed out? Are they going to get the evidence wrong, your name that you were attacked, was in fear for your life and had to defend yourself?
I don’t see it.
Straw Man #11: Police May Have Contradictory Evidence
Straw man number 11 is that the police have contrary evidence, evidence contrary to what you’ve stated, even if that evidence is actually mistaken. Here he tells an anecdote about someone, again, someone who already has a lawyer, if you already have a lawyer, you should not be talking to the police without your lawyer present. Someone who already has a lawyer who presents to the police with an alibi, claiming he was not at the scene. But then the police obtained a witness who says that person was near the scene. The witness statement standing alone, this lawyer claims would be harmless. But once the person presents their alibi to the police, he’s given them the other part of the puzzle and he’s, quote, unquote, doomed.
How about this one? Here we go. Now, here’s the most surprising of all, I’ve saved the most surprising one for last. Let’s suppose you’ve got the following scenario. Your clients thinking about talking to the police, he acts like he says, I’ve got nothing to hide. They think that I killed somebody in Virginia Beach last night. Well, where and this is what and 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 guests with a credit card. I used cash. And so I’ve got no witnesses, they can prove I was there except my word. And of course, Mama, for what that’s worth, which is nothing. But so your client says look, so the police want to talk to me and I want to seem cooperative. So what I’ll do is I’ll tell them that I was in the auto banks last night. Now. There’s nothing on its face incriminating about any of that. Let’s assume by the way that you believe with all your doubt you’ve given your client a polygraph exam. You’ve known him for years, you’ve been going to the same Bible study for 30 years, you know, beyond a shadow of a doubt that he’s telling you the truth. And he’s not admitting anything. He’s not admitting motive. He’s not admitting opportunities, not admitting that he was there. How on earth could this come back to haunt us? How on earth could this come back to 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 free to I’ll call on you. Right? I won’t call 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 here it is this is the last point I think it’s almost done even if your client is innocent and only tells the truth and doesn’t tell the police anything incriminating, and the entire interview questions and answers are videotape. Your even his truthful answers can be helped to us crucify even an innocent man. If the police through no fault of theirs ended up in the possession of any evidence, even mistaken and unreliable evidence 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 tell I go ahead and I meet with the police. I think I get nothing to hide. I tell them I was in the Outer Banks last night officer, how can it 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? And unimpeachable witness, we’ve never been enemies, she’d have no reason to lie. She swear 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 help. If she’s all they’ve got, I’ll get this case thrown out before trial. But it’s like an idiot. I talked to the police and I told them the truth. I told them 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 virgin beach. Now they’re likely to get a conviction. Because what they’ll do, I’ve just turned this cop and this woman into the government star witness, they’ll put her hell they’ll put officer Brooke on to testify about how my client lied to him about being in the Outer Banks. And then they’ll put on this girl this girl who otherwise would have not even helped her the case at all who will testify No, that’s not true. That was a lie. I saw Mr. Dwayne’s client here in Virginia an hour before the robbery not so far from the store by herself. She would not have helped the government in any significant way. But what I have just done, you see is given them the other part of the puzzle. And now I’m guilty.
This anecdote strikes me is utter nonsense. If you are the suspect in a crime, and you have an alibi, are you not going to tell the police your alibi, really, you were actually somewhere other than the scene of the crime and you’re going to withhold that information? And this mistaken witness, are the police not going to have them anyway?
The witness is not a function of whether or not you open your mouth they either have that witness or not. If they have a witness who’s placing you at the scene, it would be awfully nice to have an alibi to counter that witness testimony. And especially if they have a witness claiming you were near the scene, you will definitely without that alibi, right. So, no matter what, whether you speak or not, the police have the witness placing you near the scene of the crime, that alone compels you to disclose your alibi. Now, it’s up to the jury to decide credibility between your alibi and the evidence. You have to support that and this witness statement. But is your defense in better positioned if you do not share the alibi? If you keep that from the police? Of course, not.
Straw Man #12: Lying to the Police Will Get You Convicted
The last straw man argument number 12. The lawyer argues that lying to the police is bad and get you convicted.
Who knew? He cites several examples. Martha Stewart, who lied about purportedly illegal stock activities. Marion Jones, who lied about steroid use during the Olympics, and Michael Vick who lied about dogfighting.
Just ask them I closed I closed with this example. Here we have a couple of recent celebrity examples of Videsh [?] that even people who admit nothing, always end up denying it. I mean, sorry, they always didn’t, then end up regretting it. On the left, we have Martha Stewart, she was the victim, the subject of an extensive government investigation, they were looking into the possibility that she was guilty of violations of certain federal laws, securities laws, 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 with some of the shareholders. She said no, it’s not true. I was not guilty. So they charged with lying to federal investigators, and they got a conviction and she was sentenced to five months in prison. Marion Jones on the right side, another person who would still be out today, if she had always taken the advice that 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. Later on, it turned out that she was lying. She worked out a big deal. She pled guilty. She admitted that she was lying and she over her standard was tearful objection, 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, he got only four months, but she got six months because you lied to the police and said that you did not do it. Using the realm of Michael Vick, who originally pled guilty, as you know, to these charges with respect to the operation of this dog combat sort of operation at home at sentencing like many of the criminal defendants, even though he eventually pled guilty at sentencing, one of the things one of the reasons his sense was a little harder than it might have otherwise been the judge said was because when he initially met with the police, he lied to them said 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 always end up regretting talking to the police.
This is utterly irrelevant for our purposes. These people did not go to jail for talking to the police. Martha Stewart went to jail for lying to federal investigators for a crime to which she pled guilty. Nobody, nobody is advocating that in the aftermath of a self-defense event, you lie to the police. Marion Jones and Michael Vick both went to jail because they committed crimes to which self-defense is not a legal justification.
If you’re committing crimes to which self-defense is not a legal justification, you’re in the wrong place. The Law of Self Defense Institute is not for you.
Straw Man #13: “Every Sane Lawyer”
Straw man number 13, he makes the “every sane lawyer” argument, arguing that any sane, competent lawyer in his right mind will always tell every client under all circumstances to keep your mouth shut.
So my advice to you, just as 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 visit, I don’t care if it’s the truth is the truth. Great. We’ll tell the jury all about it. There’ll be time enough to put our cards on the table. But before we get there, I haven’t seen yet what the police got they may have mistaken and confused witnesses who will contradict even the truthful stuff 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 dispelling our demise. So keep your mouth shut. Don’t answer any questions. Let’s take the fifth, you’ll be glad to do that.
As a rule of thumb, especially, especially for defendants who are actually criminals, which is 99% of what a criminal defense attorney deals with is people who are actually criminals. As a rule of thumb, this is reasonable advice.
But to the point of losing perishable exculpatory evidence and witnesses and the aftermath of the use of force and self defense, it’s ridiculous. If after calling 911 you were to get your attorney on the phone and ask him if you should tell the police where they can find that exculpatory evidence and witnesses at the scene, do you really think your lawyer is going to tell you not to tell the police that information? Nonsense.
Now he does close with a point I can agree with very much.
God bless America. God bless the Bill of Rights.
No disagreement there at all.
Let’s go over what the say little approach does not advocate just to be crystal clear.
We do not advocate that you commit crimes for which self-defense is not a justification period. Do not lie to the police period. Do not subject yourself to interrogation of any duration, period. Do not speak substantively to investigative officers at all, without a lawyer present. Do not try to talk your way out of an arrest. Do not develop logorrhea, say what needs to be said when it needs to be said and no more than that without counsel present. Say your name, your location, be compliant with the scene for purposes of scene security and arrest. I was attacked, I feared for my life. I defended myself identify preserve perishable exculpatory evidence, request medical attention, or assert your right to counsel or assert your right to remain silent period until your lawyer is present.
I want to follow up with that podcast in 2014. With some additional thoughts that have developed since that time, I continue to believe that the say little approach I described here is the technically optimal approach.
But it may not be for everybody. Remember what we’re saying as an alternative to say nothing is say little, not say everything. But stress complicates any plan. And over the last year or so we’ve been running our live class students through a simulator where they have to solve a video threat with an infrared pistol.
And the stress these students experience in that totally artificial environment is unbelievable. Their hands shake, the pitch of their voice goes up, they start to sweat, and they find decision making to be much more difficult than they might have anticipated, Even under just that artificial stress.
I don’t know how each of you responds to stress, we’re all different. And I think if the real-world choice for you is to either say nothing or to blather away, it may well be most prudent to say nothing until you have a lawyer present.
Now I do think it’s worthwhile distinguishing between someone who’s never before seriously considered what they might want to say or not say to the police on the one hand, from someone who has given this subject serious consideration on the other hand, and there can be very substantial and important legal value that’s left on the table by the same nothing approach that can be preserved by the same little approach.
But at the end of the day, you need to decide which approach is going to work best for you.
END TRANSCRIPT
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Stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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