Episode 15: What To Do When… Criminal Law with guest Russ StoneSee Also: Criminal Defense
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From one of our partners – Scott Cardani
When you go to other countries, you’re basically guilty until proven innocent. Here in the United States, we have this statement that, you’re innocent. And you don’t have to prove you’re innocent. The police and prosecutors have to prove that you’re actually guilty.
Episode 15: WTDW…Criminal Law with guest Russ Stone
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:30
Russ, How long have you been in practice?
Russ Stone 0:33
I’ve been in practice for 32 years now.
Jackie Critzer 0:36
Primarily, what area of law have you focused on?
Russ Stone 0:39
It’s in exclusively criminal law. I toyed with some other areas for a couple of months. But it’s been pretty much all criminal law started out as a prosecutor for almost 15 years. Did a little bit of time at the Virginia Attorney General’s Office. And in 2004, I became a defense attorney. I’ve been doing nothing but that ever since.
Jackie Critzer 0:39
Have you seen a lot of changes in since you’ve been a defense attorney?
Russ Stone 0:52
Well, you know, that is an interesting thing to say, when I started, it would have been that it was 1989. And it seems like the criminal justice system often moves in waves. At that time, the system was was rather gentle towards those accused of crimes. But then in the 90s, close federally, and at the state level, it became more harsh. And you know, sentencing issues were changed more mandatory minimum sentences, more aggressive law enforcement, frankly. Now, I will say we seem to be getting to the stage where that’s kind of turning back the other way again, and there’s more of a focus on treatment and rehabilitation, rather than just locking people up for extended periods of time.
Jackie Critzer 1:51
And have you seen interactions with the police change over time, with your clients, specifically?
Russ Stone 1:59
Whether the actual interactions are changing? It’s hard to say. But I do think the perception, the public perception of people’s interactions with police is definitely changing. People. There is all over a lot more people now who do not trust the police. They question, you know, what the police do. They challenge actions of the police take. Whether or not that’s justified is going to be depending on, you know, particular facts of a particular case. But I do think there is more skepticism of law enforcement today than there was, say 20 years ago.
Jackie Critzer 2:32
Well, and right now we’ve got a big national news case about this. This missing woman, Gabby Potito, and now also her missing former fiance. And we’ve been talking about this around the office quite a bit. And in both of you feel free to to talk about it. But you know, this guy disappeared. Where did he go? We didn’t say a word. And we’ve heard that. I’ve heard every major news outlet, say, for sure he’s guilty, because he’s not talking well, how do you how do you respond to that?
Russ Stone 3:03
Alright, well – people, I mean, that it’s sort of a natural human assumption for people to make, you know, if somebody is accused of something, and they don’t say a word, or they hide, they refuse to talk about it, the natural assumption is going to be, well, they’ve got something to hide. But I don’t think that that’s always the case. I mean, sometimes people don’t talk, because they’ve got a variety of other reasons, and could be completely innocent. So I think the assumption people make is probably an incorrect one. But it certainly is a normal human thing to say, Well, why won’t you talk about this if you’re if you’re innocent?
Scott Cardani 3:40
Yeah, I think quite often, again, we don’t understand the Constitution and how it works. And I think so many people think it’s our obligation just to talk to the police, because they want to talk to us. And quite frankly, that’s not our obligation. And, and the reason that’s important is maybe not in this particular case that everybody’s worried about, but in our general lives, and in protecting our rights and our Constitution, those things become very important. Would you agree?
Russ Stone 4:06
Right, I absolutely would agree. And that’s sort of the starting point for any discussion about that is for people to understand what is the law, you know, and you hear it on television, movies all the time, your Miranda rights, your right to remain silent, your right to have an attorney that comes from the Constitution. And you have that absolute right to do those things. But people don’t always feel comfortable exercising those rights.
Scott Cardani 4:29
Well, let me I’ll throw some things out that I think about all the time, like, you know, we see it all the time, like a reckless driving, for instance, you had an accident. Tomorrow, two blocks down the street, nobody was there. The cop shows up, and are you obligated to tell him what happened?
Russ Stone 4:44
You are not. And you’re not obligated to say anything to the police. But the normal human desire is oh, I want to explain how this wasn’t my fault.
Scott Cardani 4:53
Yeah. And we know that like in those situations, they often write reckless driving tickets. And one of the things we discussing the office with Jackie is sometimes in maybe you’ll agree with and sometimes you kind of have to pay what I consider a little bit of penalty up front, they may want to arrest you, they may want to do certain things to you. But still, your obligation to talk doesn’t ever kick in. You never have to prove their case for them. In a matter of fact, as you well know, being a prosecutor, foreign prosecutor, I dabbled in it too, when I first started. They it’s really hard to prove a case without that without the person in the accident talking without and then we’ll go back again with batido. So
Russ Stone 5:39
yeah, yeah, no, you’re absolutely right. It is often that’s the only reason the police are going to be talking to you is to try to build the case and make their case stronger.
Jackie Critzer 5:49
So you mean, they’re not going to try to talk to you just to hear your side of the story?
Russ Stone 5:53
Well, they will tell you that, that’s that’s, that’s a regular line that I hear all the time when I’m watching body wire camera footage of, of or interrogation footage, things where the police are talking to you, they will say things of the nature of you know, look, we already know what happened, we just want you to tell us about it. So that we can get your side of it, you know, so that we can help you out. It’s never going to help you out. If they’re ever trying to get statements from you. It’s not going to help you out. And what you were just saying a minute ago is 100% correct in that if they’ve made the decision to arrest you, they’re going to arrest you, you cannot talk your way out of it, you will not be able to talk your way out of it.
Jackie Critzer 6:33
Even when they tell you that if you just talk to them, maybe they won’t arrest you.
Russ Stone 6:37
Right, right. They want you to think that way. But the reason is because they are trying to get you to make statements that can then be used against you. And that’s why the right the Miranda rights say, can and will be used against you in a court of law, because that’s what’s going to happen.
Jackie Critzer 6:52
Well, you raised a good point. Russ, you’ve said they’re going to tell you that, but it’s probably not true. And that sort of opens this whole can of worms are our police officers, investigators, detectives, are they allowed to misrepresent the truth or to lie to a potential defendant?
Russ Stone 7:11
They are to a very large degree, it’s not a 100% degree. There are some cases out there that they’re not allowed to, you know, appeal to your sympathies. I’m trying to remember the name of the case from law school, they talked about where they basically said, if you talk to us, because we’re trying to save somebody from dying, you know, but if they just tell you that, we’ve got four witnesses who have said that we saw you do this, so we know you did it. So why don’t you just go ahead and come clean now. It is entirely legal for them to have absolutely no witnesses. In other words, they can lie and say, we’ve got people to saw you do this, when in fact they do not have anybody that saw you.
Scott Cardani 7:52
I don’t think Russ and I are – either one or saying this is inherently everybody, every police officers way of doing things, for sure. But, you know, this is a normal tactic. And it’s like, you know, when you catch you know, somebody broke the pot at your house, your dad and the flowerpots broken, you say, alright, who did and you got three kids now everyone says I didn’t do it. I didn’t do it. And you know, sometimes we as parents go, Johnny, I know you did it, because Billy told me you did it, you know, trying to get some kind of truth. So I don’t want to villainize every cop because I don’t think that’s okay. But I think it’s so important that we understand their game. And their job is to get to a conclusion and close a case. So when some incident happens, their job is to figure out to do the best Our job is to close that case, and try their best to find out what happened. But that’s quite often impossible without your statement. Closing the door,
Russ Stone 8:48
Right. No, that’s absolutely true. And I don’t want to come across as trying to villainize the police either. That’s what their job is. They are supposed to investigate this alleged criminal offense. And part of that investigation is to get you to talk about some things. So the fact of the matter is they’re doing their job. It’s not it’s not that they’re trying to be bad human beings. It’s they’re trying to be good police officers.
Scott Cardani 9:11
Let’s go back to Gabby because I got a couple of questions where he’s I think Jackie and I were beating this horse a lot. And this is so interesting, like today on the way in. I was listening to Fox News but if you go Fox, CBS, NBC, and the see CNN any on them, they’re all saying, you know, he must be guilty because of these actions. But so let’s put you you’re what’s the guy’s name? Sorry, I know it’s got Laundrie. So Laundrie, parents give you a call today say hey, we don’t know what happened. You know, my son came home. You know, I know what I would tell them. But what would tell them.
Russ Stone 9:51
My absolute advice to them would be that he needs to keep his mouth shut and say absolutely nothing to the police.
Scott Cardani 9:57
Well, and here’s the other thing. They’re really victimizing the Parents right now saying because they haven’t had their sympathy and, and my instruction would also be the parents, don’t you say anything either, right? You know, I had a case the other day and a while back, actually. But we’re it was a husband and wife and the husband is just there doing this. It’s all on the body cam and the husband’s basically thrown the wife under the bus, in a situation that really didn’t need to happen. And it really I don’t think there was a fault. And matter of fact, the case was dismissed. But I was just amazed at the other parties talking how that was making her look horrific. And so often, again, your parent parental nature is to try to get your kid out of it or try to help them or do something like that. And in that process, you may be throwing your kid under the bus. Exactly, and and back and back over and back and back over again. So Right.
Russ Stone 10:44
So Right.. And that’s that’s a good way to put it. And it’s all it’s all well intentioned, you’re trying to help. But it’s in that context, you are not helping.
Jackie Critzer 10:53
So let’s just do a quick facts scenario. I will listen to a lot of podcasts. And one of them I’m listening to right now is a who done it. And this is this long series about investigations and interrogations. And and they’re talking to some of the characters, if you will the cast of characters, sometimes weeks or months after this incident, this happened to a murder case. And they’re asking some of these characters. Well, when you left the party, did you make any phone calls? Did you text anyone? And these people are seemingly trying to answer what what I would consider innocuous or inconsequential questions. What what is the problem with answering questions like that?
Russ Stone 11:39
Well, because you don’t know at that stage, how innocuous it actually is. It might turn out to be innocuous and not hurt at all. But what one of the common tactics later on a trial that will be used is to say this person made inconsistent statements. And the more times you talk, the more likely you are to make an inconsistent statement. Even if it’s a relatively innocuous innocuous one. You might say, Yes, I made three phone calls. Well, then, later on, they check the phone records and see No, you only made two. And the trial, they will say Well, you told the police you made three phone calls, but you only made two, you know making it look like you were lying about it when in fact you were just mistaken.
Scott Cardani 12:22
And that’s a lot of criminal law. When you see these appeals. And after years and years of somebody being incarcerated, they do a DNA test, they figured out it wasn’t him. After all, a lot of that happened because he was either trying to tell the truth without an attorney. And he said he was at Joe Joe’s house. And it really was at Steve’s house. And so they paint him as a liar. And then in front of the jury. He looks like he’s being untruthful and hiding something. And we have this propensity to think why would he be lying? Why wouldn’t he tell where is that? But the real, the real, real reality is if somebody asked you, if I asked you they were asked, What were you doing on October? September 3, right? You’re not? You’re like, well, I’ll have no idea. Let me look at my calendar, maybe that’ll jog my memory.
Russ Stone 13:03
But there’s the normal human desire to be helpful. You asked me that question. So I want to give you an answer, even though I don’t really know what the answer is. Yeah, it’s just that’s the way people are.
Scott Cardani 13:14
Back to… one of the things I thought about is you again, we’re looking at facts, and what we have now doesn’t look good. But what there’s a bunch of scenarios that could happen here, correct.
Russ Stone 13:27
There are… I have to be honest, as a human being, I’m thinking to myself, the more I hear, there’s fewer scenarios. That’s that’s a reality. I mean, I’m not not trying to snowball anybody on that. But you know, I know initially when we just knew that she was missing, and we knew that he wasn’t talking. I remember letting scenarios roll through my head that you know, will maybe maybe She hurt herself after having an argument with him. Maybe there’s something along those lines where he just feels like he might have done something wrong. But in reality, he didn’t do anything wrong. But he can’t make that decision until he sits down with a lawyer and they analyze everything and decide, well, yeah, you’ve didn’t actually do anything wrong here. And that’s why I would always encourage anybody to talk to a lawyer before you do that. Because you may end up talking to the police. I’ve done that with clients. I’ve had clients come to me and they say, Should I talk to the police? And I said, Well, calm down. Let me find out as much as I can about it. And then we will make an intelligent informed decision as to whether to talk to the police. And sometimes that decision is we do go talk to the police. And sometimes the decision is no we do not. But you want that decision to be informed before you make it.
Scott Cardani 14:42
Yeah, I kept thinking at the beginning too. And I agree with you as time goes on. And you hear about how this couple was constantly fighting. It was interesting. Initially, they kind of made it sound like it was both fighting and that she had blown up to the point where the police had been called on her. So I’m thinking this is a pretty volatile relationship. What if they’re behind the ban. She attacks him physically. And he just shields himself that we see so many assaults in batteries where he sticks up his hands, right? You’re not coming at me. And she falls over hits around the rock, and he thinks, oh my god, I just killed somebody right there, you know, they’re gonna hang me, I’m running, you know. And those are very real scenarios we see every day, where there’s really no culpability, other than defending yourself and trying to stop bad situation and all sudden, it turns into a very, very bad situation on yours. And the worst thing you can do at that point is talk to the police. Right? You’re gonna sound exactly you’re you’re already guilty inside, because the fact of the matter is if you hurt somebody else, most people who aren’t criminals, and aren’t bad people feel bad about that, right? Even even if it’s not intentional, they still feel bad. And that’s why car accidents and all those things in the same way. When you wreck into somebody you feel bad about I am so sorry, I hit you.
Russ Stone 15:54
I’m so sorry, I hit you. And then you’ve made a statement that can be used against you in a civil suit.
Scott Cardani 16:00
Really, really important to understand why the Constitution is there. I mean, we have the best constitution in the world. Whether anybody likes that or not. People fuss about how this country is so bad. Man, when you go to other countries, you’re basically guilty until proven innocent, guilty until proven innocent. Here, we have this statement that, you know, hey, you’re innocent. And you don’t have to prove you’re innocent. They have to prove that you’re actually guilty. And talking most of the time, only proves it.
Russ Stone 16:30
And actually you sort of alluded to it earlier on, when you said something about, I don’t remember exactly how you phrased it, but people need to remember, you know, winning that initial battle with the police, at the time of making statements or not making statements isn’t the ultimate goal, the ultimate goal was to win the war, which is to be found not guilty, or to not ever get charged with crime. If you’re in that initial stage of an offense, the whole investigation and prosecution could take six months could take a year, you might you know, think you’re getting some scoring some points by refusing to talk to the police or by trying to convince the police by talking to them that something else happened to them actually happened. You might win that war for a day or two, but then you’ve just made statements, they’re gonna gonna send you down the road. So you got to think long game, I want to make sure I walk out of this, okay. And the best way to do that is by not giving them any more information than they have until you’ve got proper legal counsel.
Jackie Critzer 17:30
Well, a lot of people believe that if they, they believe the police, when they say if you don’t talk to us, we’re going to put you in jail. And that’s just a, that’s just what people believe they’ve seen it on TV, they’ve heard people talk about it. So most people don’t want to go to jail. They don’t want to like, especially if they’re innocent.
Russ Stone 17:48
I would say in most instances, if the officer is saying to you, if you don’t talk to me, you’re gonna go to jail, then you’re going to jail. Regardless, they’re going to put you in jail. They’re just trying to get you to say more things that they can keep you in jail longer.
Scott Cardani 18:03
I agree 100%. I think so often, we again, like and Russ said this, and I don’t want to beat this dead horse. But you got to understand what’s going on here. And, you know, it’s like a DUI on the side of the road, you get pulled over, you’re under no obligation to say you’re drunk to do their test to do their field sobriety thing. Are you going to get locked up? Probably. But the time and the space and all the things that happened in between that in the beginning, in the end, might be your very salvation, where you think that just talking, run your mouth, or I can do this test. I’m physically strong, you know, you know, I don’t know, sometimes I think all the time, like, say your ABCs backwards. I’m like, Can I do that right now? I sitting here. And so often you feel like, Oh, I know, I’m not drunk. I’m just going to do this. And so you fail all the sides of the road test, or even you fail one, that gives them probable cause to take the next step. Right. So often we’re giving them and I’ll let Russ explain the probable causes, but the officers have to have some probable cause.
Russ Stone 19:11
Probable cause – hmm everybody has heard that in a criminal case to convict somebody they need evidence that proves guilt beyond a reasonable doubt. Okay. Probable cause is a much lower standard. It’s basically is it reasonable to believe that a crime was committed? And is it reasonable to believe that this person committed that crime? That’s that’s probable cause? That doesn’t mean you’re guilty of probable cause finding doesn’t mean you’re guilty. It doesn’t even go on your record. But if a charge is placed, it has to be based on probable cause. And then the whole process begins the long month long process of determining whether or not that case can be proven beyond a reasonable doubt.
Scott Cardani 19:54
And that’s probably at this point Laundrie has not Then he’s still a person of interest. Because really they have, they don’t have probable cause at this point. Because the bottom line of that case, whether regardless of your belief is, as of right now, nobody saw what happened. On that very moment in time, whatever happened, we still don’t know what the heck happened. I mean, did she fall off a cliff hike in me drag her back out, he’s good, she’s gonna be okay and passed away. Again, I, we realize that these scenarios are less likely as time goes on. But still, we’ve seen that happen. We’ve seen that played out where it was a good wasn’t a bad situation at all. It wasn’t nobody did anything wrong. But in the end, because of fear, and the way people acted and did stupid things, it looks like they did some stupid, like, for instance, if she they’re out hiking, and she fell down her head, and he drugged her back and thinking everything’s okay. And then she dies. And he’s like, they’re gonna think I killed her, because I’ve been fighting with him the whole time. And, you know, he panics and he runs again, I understand. But we have to understand, especially as a society, that those things are really important that we let those things sort of play out. Because sometimes, you know, in today’s culture, like you were talking about how things have changed. So often, we just want to jump to the end. And it’s okay, if everybody else is guilty, but it’s not okay, if I’m guilty, right. Yeah, you know, so it’s like, you know, I tell my boys just for instance, like, or young men I know, in general, you gotta be really careful. Today’s culture, when I was a young man in the backseat of a car, the girl and I was making out with her, and I may try to go to first base, and She smacked me in the face. That was the end of it. Now, it’s sexual battery, almost, you know, and you’re like, wait a minute, and there’s no rules. And it’s really weird. So you’ve got to be really careful how we judge people all the way down this road. I don’t know about you. But I have some people I’ve represented over the years who are now registered sex offenders who have no reason to be on that list. Right. But as a neighborhood, we look it up. Oh, he’s a registered sex offender. So he must be multiple registries. That can be a whole nother podcast. Yeah.
Jackie Critzer 22:04
When you’re pulled over, maybe for speeding or a busted taillight, and the police officer wants to search your vehicle and asks if they can search your vehicle?
Russ Stone 22:16
Well, I would say under I would almost I would never consent under no circumstance. And I don’t mind saying candidly, there’s nothing in my car for them to find. But I would not consent to a search. And I would make them what they have to legally establish is that they have probable cause to believe there’s some evidence of criminal activity in your car. But people just and again, it’s that desire to want to please the person in authority. They just say, oh, yeah, sure, even though they know there is something in their car. I don’t understand why people would ever do that. But I just think the precedent needs to be set. They don’t need to be searching your personal belongings, there’s that there’s nothing in my car right now that I’m embarrassed by. But I wouldn’t let anybody search that because it’s just nobody’s business. It’s not the government’s business, what’s in my car.
Jackie Critzer 23:07
And so what happens when a crime has happened? And the police call you and they say, well, we want to talk to you because we think your witness, we don’t think you’re a suspect. We think you’re a witness. Now what now what do you do as, as a person who’s who’s spoken to the police,
Russ Stone 23:26
I would say that’s another example of where they are legally allowed to deceive you in that regard, that doesn’t, just because they tell you they only think you’re a witness doesn’t mean in the back of their mind, they don’t also think you might be a suspect. So you know, I think you need to be very, very careful. Now at the same time, nobody likes crime. I don’t like crime. I live here. You live here. Nobody likes crime occurring. And we all want to try to cooperate to help crimes not be committed. You know, if you feel you’re the victim of a crime, I think you need to talk to the police. That’s what you need to do.
Scott Cardani 24:01
Absolutely. Your Neighborhood guy knew you’re part of, you know, be the neighborhood watch. You see a crime report it? Absolutely we don’t, we’re not.
Russ Stone 24:10
But that’s, you know, that that is that’s the nature of being a good citizen. We don’t want those things occurring in the neighborhood. So the fact is, we will call the police, when are you that’s what the police are for there to investigate criminal activity. But if you get the slightest impression during your conversation with the police, that all of a sudden this is turning into something where somebody thinks you might have done something wrong. That’s when you need to just say, you know, Excuse me, officer, I’m not comfortable with this. I would not, I would prefer not to speak with you until I’ve had a chance to talk to an attorney. They will stop at that point. They are legally required to stop at that point. Now, there are some exceptions to that which we can get into if you want to.
Jackie Critzer 24:48
But what if they don’t stop? What if we’ll say no, no, I want no I want to I’m going to lawyer up. I mean pick whatever anucular you want.
Russ Stone 24:56
That’s good because that’s something that I actually do like to explain to people as often as possible. Once you say, I’m not comfortable speaking with you without an attorney, all that means is nothing you say from that point forward can be used against you. Now, the exception to that is that if they do keep talking to you, and you keep answering, which I think is a mistake, but if you keep answering and they’ve talked to you, after you’ve already invoked your right to an attorney, then the only context where those statements could be used against you is if you get on the stand at a trial six months later, and you say something that is different from what you told the police, they are then allowed to say, well, now wait a minute, you told the police six months ago, something completely different from what you’re saying now. And that’s why you shouldn’t be talking. Because you don’t want to make that prior inconsistent statement.
Scott Cardani 25:49
It goes around like we were talking about, you never want to look like you’re not telling the truth, because in front of a jury soon as they are in front of a judge, since he believes you’re not truthful. And I think it’s, I really do think it’s easier to convince a judge that it was a mistake than a jury right? Often. But still, soon as you make that you are, you open the door to something much greater than any time before that. It’s, it’s crazy. And a lot of times in those scenarios, like you said, you want to talk or you think you got it, you think I didn’t do anything wrong, so I’m just gonna start running my mouth. And again, you make some inconsistent statement, or you think, you know, we have this propensity to start talking soon somebody asked us something, and in that we hadn’t had the time. And this is why it’s so important to say, You know what, with all due respect officer, I’m gonna, I’m gonna ask a lawyer before I start talking, that gives you time to at least process, because a lot of times we just start talking about Google and you know, we get things wrong facts wrong is when we start talking, when we have the time to go talk to us. Let’s sit down, walk through it, get my story straight. You’re not lying. You’re just making sure you’re saying you’re saying the right place and the right way. I was not at Johnny’s I was at Jimmy’s right. I wasn’t in Hanover, I was in Henrico. I mean, that can be little simple things. You say my mistake, because you just start talking about the cause. And I could have been me, I was in Hanover, you met Henrico? Right. You know, then you said it. And you said it, you’re a liar.
Jackie Critzer 27:17
You know, another common belief? Is that if you say that if you say no, I’ve got to go talk to a lawyer that then maybe you went from a witness, they wanted to talk to you to assess like that it absolutely broadcasts your guilt.
Russ Stone 27:33
And that that that I really think is a misconception. I mean, people believe that and on an individual basis, some people might think, Oh, he lawyered up. So that means he’s guilty. Legally speaking, though, it doesn’t mean that your silence cannot be used against you. Your asking for an attorney cannot be used against you. I just did it. I had a jury just yesterday and Reiko County. That’s one of the instructions that was given to the judge. I mean, it was given to the jury, the judge instructs the jury that the defendants silence cannot be used against him.
Scott Cardani 28:06
And I think honestly, that’s what’s been bothering me about what’s going on with the TITO not again, I’m not really commenting on his innocence or guilt. I’m just comment on the framework in which they’re putting people in and they’re saying, because he’s not talking because he went away and remember, from the fact Saigon, you guys, correct me when he left there was nobody asking him questions. He came home and left pretty quickly. Right? You know, so, again, is it look good? No. But the point is, just because he’s not saying something, just because his family’s not saying some doesn’t paint them as bad people doesn’t paint them any other way, then they may be making a very strategic smart decision. I kind of think of the last few years of politics of some of these people will just shut up. A lot of the things that happened probably wouldn’t have happened. But we get in this propensity to talk. And we think we’re okay. And you never know who you’re talking to. Sometimes, you know, and the other thing that we keep talking about is we tell our clients all the time, don’t talk. Then they go to school and they talk to Jimmy and Johnny they’re best friends and they tell the story. And maybe they embellish the story because it’s kind of cool and then all sudden they’ve told two different stories. And again, you look like a liar so it’s really really imperative when something happens and you’re not comfortable with it, you know, this is potentially a problem. Zip the lip and for everybody.
Russ Stone 29:31
Or they post about it on social media
Scott Cardani 29:32
Worse. Worse, yeah.
Jackie Critzer 29:36
What about when you know you you know the story. You know, you didn’t have any part in the story and you want to tell the police what what really happened, you just you have nothing to hide. You just want to share with them you saw this go down and you you have no problem talking to them because you had nothing to do with it.
Russ Stone 30:00
You shouldn’t…. You, unless you’ve happened to be a lawyer can’t be 100% sure of that. So you think you had absolutely nothing to do it, you think you’ve got no liability, you may be right, you might very well be right. But you ought to sit down with somebody that knows the system, first, discuss it with them, and confirm that you’ve got nothing to worry about.
Scott Cardani 30:22
Because, you know, we always say you’re your own worst lawyer. And that’s so true. Because even if even if you are a lawyer, I mean, quite frankly, if somebody asked me about some crime and thought I was doing it, I would go talk to Russ or somebody right away. Because I know that I’m gonna see it through my own eyes. And I’m like, I got nothing to hide and and Russ, I have a conversation, as I said, Well, you did that kind of looks a little weird. I never thought about that, as is a little weird.
Russ Stone 30:46
And that that objectivity is something that yes, what you’re hiring a lawyer for. And sometimes clients don’t even like that, you know, when a client tells me a story, I go investigate whatever, I can investigate, and I come back and I, I have to honestly say to them, You know what, they’ve got a pretty good case against you. Sometimes they get upset about that. But that’s my job is to give them my honest opinion as to what’s going to happen if we put this in front of a jury or in front of the judge. And that’s, that’s unfortunately, that object objectivity is what you’re paying for. And you want it so that you can make the best decision as to how you go forward.
Jackie Critzer 31:22
I think there’s some the critical issue that that we see from a different point of view, because we’re attorneys. But there are people who are in the scenarios we’ve talked about today, and the fact patterns who simply don’t have the resources to talk to an attorney, right? They will, for whatever reason, they will what what do you do, then you just can’t possibly come up with that kind of money.
Russ Stone 31:45
good, you know, the, to some extent, the Constitution helps with that. Because if you’ve actually gotten to the stage of being charged, you have a right to an attorney and the government can will appoint you an attorney. You just need to make sure you exercise those rights. And it’s the actual assertion of the rights that sometimes people get uncomfortable with. In the civil context, it is different than you might have to be dealing with legal aid or something, something like that.
Scott Cardani 32:10
But again, it’s it’s knowing that you don’t have to talk. And even at that beginning stage, knowing that you cannot afford an attorney shouldn’t start your mouth running. Because again, the best possible thing you can do is stay quiet. Until such time as you get a court appointed lawyer, you know, Grandma helps you out. Or maybe you don’t get any help. But even in that scenario, a lot of times, I would say 99% of the time, you’re better off not talking, right. And you know, one
Russ Stone 32:34
You know, one of the things I always like to remind people of in that context.
Scott Cardani 32:45
Sorry, we had a little mishap with our gizmo. Because it’s low battery.
Russ Stone 32:51
Alright, we’re back know what and what I was gonna say another another aspect of that. Remaining silent means remaining silent, it does not mean getting in the officers face and telling them that he doesn’t have the right to do these things. Yeah, being nasty to the police is never going to help your situation. When I say politely tell them, I want to speak with an attorney. I mean, politely tell them that they will respect it. If you say to the police, I want I’m not comfortable speaking with you, I would like to speak with an attorney. But don’t do it in a nasty way. You’re never going to win that fight.
Scott Cardani 33:27
I said all the time. Like I try to tell him, I always say tell my kids or something I say say with all due respect. I want to you know, in any one goes into the school and principal is interviewing you. And I know that’s gonna be a week wonky right now. But, you know, I tell my kids, like, even if the principal calls in the office, you don’t have an obligation to speak, right? Call me. And we’ll talk about I’ll come talk to you. You feel the pressure. You know, I remember my son one time in junior high, gotten some kind of mess. And they wanted him to write a statement. And he made me very proud because he said, with all due respect, I’m not gonna write a statement. Well, you have to write his statement. He has no I don’t. And he just stood his ground. And you know, and he just looked at me because now he said, but if you want to call my dad, he’ll come talk to me. And then maybe I can talk to you. Maybe I can’t, but at this point, I don’t feel comfortable talking. And I’m not going to Yeah, and he just stood his ground. I was like, Dude, that’s beautiful. And the reason is, quite frankly, in that situation, he had nothing to do with it. But I just really feel like he could have gotten himself into trouble had he talked.
Russ Stone 34:29
And said something that it shouldn’t shouldn’t say not unintentionally.
Jackie Critzer 34:33
Is there anywhere the police can’t talk to you are not permitted to reach you work home, the spa the golf course, is there any way they’re, they’re not allowed to try and find you.
Russ Stone 34:43
Not really. I can’t really think of any place that they can’t go. I mean, I’ve had people sitting in hospital beds after being injured in a car accident, get interviewed by the police. Now sometimes that interview if you’re drugged, something of that nature, you know, it might may not be as valuable to them but still they are allowed to make the attempt.
Scott Cardani 35:06
Absolutely they they’ll show up and remember their their objective sometimes does that make you feel uncomfortable? Because the natural I guess immunity or not immunity, the natural end antidote to our anxiety, sometimes it does start talking, right. So they want you to feel uncomfortable, and they want you to be in that tight position. So you start, I gotta get out of this. You know, that’s why people get interviewed for 14 hours. It’s really not about the 14 hour interview, it’s an hour 14, your defenses start to fall down, you start to get you’re so anxious, you’re so concerned and it over with, tell them what they want, and then tell them what they want. Oh, and that happened. So many cases were Russ and I and Jackie studying law school that should have never been, you know, convictions and people got convicted. Now, is that a huge percentage? No, but to me, spending one day in jail. It’s like our Founding Fathers, it’s better for 99 guilty people to code to get away with it than one person to spend one night in jail. And that’s the principle of our Constitution that we stand on.
Jackie Critzer 36:06
Exactly. How difficult is it as the defense attorney in court or otherwise to overcome statements made without an attorney? What how does that impact the case – in your experience?
Russ Stone 36:08
It varies from context to context and what the statements are, what the circumstances were, where the statements were made. I guess the overarching point, though, is you just don’t want to even have to deal with that it would be so much better. I like the cases where somebody comes to me, and I find out after you know, a month of investigating and filing motions, that they didn’t say a word to the police there, I have no statements to deal with. That means when we get to a trial, I can sit down with my client and say, Well, this is all their evidence. What do you have to say about it? And that’s the only statement that’s ever been made what he says at that point.
Scott Cardani 37:01
And it’s really, it’s really a good thing. And I don’t know about you, but I have, again, we’re not anti police or anything like that. But I still have a lot of good friends who are police officers, my neighbor used to be a detective. And, you know, he would tell me all the time, you know, we’d have we know you’re talking about a case. I mean, you know, he said, You know, I would say 85% of my cases couldn’t have been solved, but for the guy actually speaking about it. And that’s a scary number when you think about it, but it goes back to again, and I hate to beat a dead horse. But this whole PITINO case, if he stayed silent this whole time, and doesn’t talk to the police and his family doesn’t get involved. And nobody who knows says anything is going to be a hard case to win, right? Because you have a person who died in the middle of the woods and nobody around. And you can put all the circumstantial evidence you went around that they fought it when these and they fought over here and cost got called on her and they had a very violent relationship. Okay. That doesn’t mean in that moment. Because remember, they have to prove beyond a reasonable doubt. There’s no other way she could have died. Right? So there’s reasonable doubt that all kinds of things could have happened, she could have fell, she did a trip, she could have hurt herself. She could you know, here’s 100 scenarios there, that a defendant good defense attorney is going to put in front of the jury and say, Look, we don’t know what happened, you know, and everybody wants to rush to judgment and close it. And again, if he’s guilty, I’m all for it. You know, he he needs to go to jail for a long time. But, you know, at the other side of that, if he’s innocent, is in the wrong place the wrong time or made a dumb mistake and in the CIP in a very bad circumstance, that’s not worth him losing his liberty.
What To Do When… Outro 38:41
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What To Do When…Legal Chat Podcast Outro
We hope you’ve enjoyed this episode of what to do when for more episodes, be sure sure to subscribe to our podcast and we encourage you to check our archives to listen to previous topics Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
We look forward to helping you in this venture and Good Luck!