Taking the Fifth: Suspicions Are Better Than Admissions
By Dana M. Grimes
All too often, criminal defense attorneys get involved in a case long after an investigation begins, particularly in white collar crimes. This is unfortunate, because it is harder for us to get charges dismissed than to keep them from being filed. As white collar defense attorney Mike Lipman says, “It is amazing to me how tightly some civil lawyers will hold on to their client, as he sinks with an anchor around his neck.” If you are a civil attorney, call your local friendly criminal defense lawyer immediately if:
(1) A Person With a Badge And a Gun Wants to Hear Your Client’s Side Of The Story
The only two people who are interested in your client’s side of the story are his mother and his defense lawyer. The investigating officer is simply trying to build a strong case to hand to the prosecutor. Sometimes it is helpful for your client to cooperate in an investigation, but it is imperative that he do so through his defense attorney.
A pleasant officer will often say, “Don’t worry; I am not going to arrest him.” Translation: “I am not going to arrest him yet. First I would like him to make some incriminating admissions.” If the client is not arrested at the time of the interview, the officer does not have to advise the client of his Miranda rights. However, everything he says still can and will be used against him when the prosecutor is evaluating the case, as well as later down the road when he is being tried on felony charges. The rules of evidence make talking to the police a losing proposition: anything that the prosecutor wants to introduce against the client will come in as an admission of a party, whereas any innocent explanation of the matter will be inadmissible as self-serving hearsay.
A police officer may show up at your client’s door late at night and say, “I need to talk to you.” No he doesn’t! It can be intimidating, but your client needs to ask the officer for his card and politely tell him that he will have his attorney call at a later time. Remind your client that he is doing nothing wrong by invoking the Fifth Amendment – the Framers of our Constitution fought hard to provide us with the right to remain silent.
(2) A Search Warrant Was Executed at Your Client’s Business or Residence
If your client calls while agents in flak jackets are rifling through his drawers (the residence is usually in Fairbanks Ranch) and you cannot immediately reach a criminal lawyer, drive to the scene of the search with a roll of duct tape to ensure that the client will not make any “spontaneous declarations.” Once you arrive, read the search warrant to ensure that the police are not exceeding the scope of the warrant. Your client has a Fourth Amendment right to a warrant which particularly describes the place to be searched and things to be seized. Do not let the ATF dig up the prize begonias in the garden if the warrant only permits a search of the house and attached garage. If the agents leave without arresting the client, do not let the client entertain the delusion that he need not worry about being indicted. To get a search warrant, the officers had to persuade a judge that there was probable cause that a crime was committed and that evidence of the crime would be found at the premises to be searched. In many cases, particularly white collar cases, charges are filed months after the search warrant is served.
(3) The Client Was Arrested or Issued a Citation And Now He Happily Reports That When He Appeared in Court He Was Told That the Case Was Not Filed
This occurs frequently in state court, on both felony and misdemeanor cases. It only means that the case has not been issued at the time initially set for arraignment. Your client will likely tell you, “the charges were dropped,” or “my case was dismissed.” This is unlikely. The police are not in any hurry with defendants who have posted bail, and in a matter of weeks or months the police reports are going to be on the desk of a deputy district attorney or deputy city attorney who will review it and very possibly issue a criminal complaint.
In most of these cases, instead of obtaining an arrest warrant, a notify letter is sent to the last known address of the client. If he does not receive it, even for some innocent reason (for instance: he stays at his beach house over the summer and the notify letter was sent to his Fairbanks Ranch address), he will miss his new arraignment date and a warrant will be issued for his arrest. He will then be arrested at some inevitably inopportune time, such as when he is on a date with his new girlfriend and he gets pulled over for speeding. He will have to start the bail process all over again. This is due to the fact that the bail bond he posted to get out of jail in the first instance was exonerated when charges were not filed by the time of his arraignment. And no, the bail bondsman will not return the $5,000 or $20,000 or $50,000 that was paid as a premium on the original bond.
(4) The Depo Questions Go Too Far
The golden rule in defending a civil case should be to do no harm to any potential criminal case. There are times when a civil lawyer calls our office, concerned about the way his client answered some questions in a deposition. We then flip through the deposition saying, “Well, here’s Count One, there’s Count Two, that’s Count Three.” During a deposition, criminal lawyer Victor Torres cautions, “Listen to the little voice deep inside you, calling out ‘Fifth Amendment!’ from that Criminal Procedure class you took years ago.”
(5) He Is Innocent! Shouldn’t He Just Tell the Truth?
No! Above all else, he should not lie. But he should also know that the truth will not set him free. Your client might be innocent or he might be guilty or he may be somewhere in between. If the government is investigating your client, it does not matter which one of those three categories he falls into; he needs a criminal defense attorney to protect him from saying or doing anything that could be misinterpreted as incriminating.
Your client might think that by referring the police to his criminal lawyer he will make the police suspicious. The police are already suspicious of your client – that is why they want to talk to him. Suspicions are better than admissions. Defendants in white collar cases are typically wealthy, persuasive, and smart (just ask them, they’ll tell you so). However, they are not always so much smarter than the average bear. Telling them about the no-win rules of evidence regarding defendants’ statements, discussed above, can help persuade them to keep quiet.
If your client “explains everything” to the FBI, that increases the odds that he will have to explain it again later to a jury. For a good concrete example, remind your client that Martha Stewart went to federal prison, not for insider trading (she was never convicted of those charges), but for lying to the FBI and Obstruction of Justice. The lying law she was convicted under is referred to by criminal lawyers as 1001, because it is contained under section 1001 of Title 18 of the United States Code.
1001 is much different than perjury; it prohibits providing a materially false statement to any federal agent (such as the FBI or SEC). 1001 prohibits lying even when the person is not under oath, even when the person is not advised that it is illegal for them to lie, and even when the person has committed no substantive crime. This means that a 1001 conviction can be based on a phone conversation your client has with an FBI investigator on a Sunday afternoon. By the way – the phone conversation need not be recorded. The charges can be filed based on the notes and recollection of the agent. (Interestingly, there is no law preventing an investigating officer from lying to and tricking your client – this is encouraged as an effective law enforcement tactic.)
The difference between Martha Stewart and Scooter Libby is that Scooter lied to the FBI and he lied under oath during the grand jury investigation into the CIA identity leak of the name of Valerie Plame. Lying under oath also applies to testimony given to Congress. Lying to Congress, of course, is the Ollie North Crime. Ollie North, however, had the Ollie North Defense, which will likely not be available to your client because it involved complicated immunity issues. And don’t even get us started on Bill Clinton’s testimony regarding Monica Lewinsky!
Attorney Pete Hughes tells of a white collar defense colleague who has a large stuffed fish mounted on the wall in his office where he interviews his clients. The plaque below the fish reads: “If I hadn’t opened my mouth, I wouldn’t be here.”
UPDATE 8/9/2012 – In some cases, defense counsel will have the opportunity to talk to the investigating detective early, long before the case goes to the DA or US Attorney. Although you will almost never allow your client to be interviewed, you will sometimes provide information that is helpful to the detective, including favorable defense witnesses, if they exist and you are certain that they are solid. In hit and run cases, you will provide the insurance of the registered owner of the vehicle (which is a good way to describe your client if proof if identity of the driver is at issue). Talking to the detective can be beneficial for your client as well as for the detective, but there are pitfalls. Magill v. Superior Court (2001) 8 Cal App 4th 61, is an unpublished opinion which can not be cited, but it provides a good example of the problems that can arise if counsel is not careful in what is disclosed to the detective, and a good discussion of the attorney client privilege and work product privilege.