Brian Thiem on the blog today. I was watching a TV show the other night. The detective was questioning a murder suspect in an interview room, when suddenly the door opened and a well-dressed man carrying a briefcase entered. The man said he was the suspect’s lawyer, all questioning must cease, and unless the detective was ready to charge the suspect, they were leaving.
I don’t know what the policies are in other departments, but where I worked, criminal defense lawyers are not allowed to enter the offices where detectives work and certainly can’t get to an interview rooms unless escorted there by an investigator.
The other part of this TV scene that irked me was a TV lawyer having the authority to tell a detective to stop the interview—that a lawyer could invoke someone else’s Miranda rights. Court rulings as far back as that landmark decision say the suspect has the right to remain silent and the right to an attorney, but there’s nothing in any court decision I’ve ever seen that gives an attorney the right to invoke those rights on behalf of a suspect.
I remember testifying about the confession of a murder suspect in one of my homicide cases. The defense lawyer, in his cross-examination asked: When you were interrogating the defendant, were you made aware I was at the police station and demanded to see my client?
Me: We don’t interrogate people, we interview them. But, yes, I was aware of your presence and your demand.
Lawyer: But you didn’t allow me access to my client and continued to interrogate him. Is that correct?
Me: As I said, I was interviewing him, not interrogating him, but you’re correct that I didn’t allow you access to your client and I did continue the interview.
Lawyer: And when I was denied access to my client, I demanded you cease your questioning of him. Were you made aware of that?
Me: I was.
Lawyer: And you didn’t.
Me: That’s right.
The deputy DA in his redirect asked: Why didn’t you permit Mr. Jones access to client?
Me: Because the law doesn’t require me to. The defendant waived his right to counsel and agreed to talk to me, and if I allowed Mr. Jones into the room, he would’ve told the defendant to stop talking to me.
DDA: And why didn’t you want that to happen?
Me: My goal as an investigator is to seek the truth. The defendant was beginning to tell me the truth about how he killed the victim and why, and if Mr. Jones was permitted to interfere, it would’ve prevented me from getting the truth.
Of course, Mr. Jones objected, and after a lot of back and forth between him and the DA, the judge overruled the objection but instructed the jury to disregard my characterization of what the defendant told me as being the truth because that would be up to them to determine.
The defense attorney wasn’t stupid. He knew that in California, he had no legal basis to make me stop questioning the murder suspect. And he knew the judge wasn’t going to throw out the confession. (He’d already tried that in an earlier hearing, by the way.) But he was trying to portray the cops as bullies and himself as the guardian of the defendant’s rights.
And I’m certain that had the DDA and I not been prepared for this line of questioning with our great comeback, many members of the jury—men and women who had seen that scene play out on TV many times—would’ve accepted the lawyer’s portrayal of the police as bullying the suspect into a confession, even when the judge ruled it admissible.
So, TV detectives, please start locking the doors to your squad rooms and stop letting criminal defense lawyers anywhere near your interview rooms when you’re questioning suspects. They don’t want you to get the suspect to tell you the truth about the crime he committed, and if you can get the suspect to confess, you won’t have to let him go free.