Former prosecutor & FBI Special Agent and current criminal defense attorney, David A. Faulkner handles cases ranging from DUI to attempted murder.
Interviewer: What are some of the top misconceptions individuals have with regard to being arrested for a crime?
In the Arrest Process, When Should an Individual Be Read their and that your a and I endured in her Miranda Rights?
David: One of the questions that I get most often relates to law enforcement failing to read a person their rights. We have all seen on television an individual who gets arrested and one of the first things, at least on television, is that the person is read their rights. The rights include: their right to remain silent; their right to consult with a lawyer prior to and during questioning; the right to have a lawyer provided to them free of charge if they cannot afford a lawyer; and the right to stop answering questions at any time even if they have previously started answering questions.
If You Were Not Read the Miranda Rights during an Arrest, It Doesn’t Mean the Charges Will Be Dismissed
However, in real life, law enforcement officers do not always have to read a person their rights, and if they fail to read the person their rights even when they are in supposed to, it does not necessarily mean that the case gets dismissed.
Custodial Interrogation: You Should Be Read the Miranda Rights When the Police Are Interrogating You and You Are Not Free to Leave
A law enforcement officer is required to read a person their Miranda rights under the US Supreme Court decision, when they are engaging in what is known as custodial interrogation. As you can kind of tell from the phrase custodial interrogation, the analysis involves a two-part analysis.
The first part is the easy part, which is whether or not the individual is being interrogated. The person is almost always being interrogated. So, for example, when the officer is asking about the who, what, where, when, how, and why of the offense, they are interrogating the person.
The real challenge is deciding whether or not that person is in custody. Custody has been defined as when a person’s freedom of movement has been restrained to that degree associated with formal arrest. What are the facts that demonstrate or that would make a reasonable person believe they have had their freedom restrained to that degree associated with formal arrest?
For example, if a person has been handcuffed, most people would associate being handcuffed with being placed under arrest. If the person is physically restrained or touched by the law enforcement officer, such as the officer grabbed their arm or their wrist, or the officer directs them to the ground. One would normally associate such touching as being indicia of being placed under arrest. As well as if the law enforcement officer says to the person that they are under arrest.
Those sorts of things would cause a person to be in custody, and if you have custody and you have interrogation together at the same time, then law enforcement is required to read the person their Miranda rights.
What Can Occur If a Person Should Have Been Read The Miranda Rights but Was Not?
Let us say that law enforcement was supposed to read the individual his or her rights but did not, what happens next? Some people are under the mistaken impression that the case just gets dismissed. The truth is that the failure to read the Miranda rights can result in evidence being thrown out.
Evidence Obtained from a Custodial Interrogation Will Not Be Admissible but the Charges May Not Be Dismissed
Specifically statements made by the accused that were made while in custody and being interrogated but without the benefit of Miranda will be thrown out.
Does the State Still Have a Case If Some Statements Are Not Admissible?
Now, what if those statements are critical to the state’s case, in other words, the state could not prove their case without those statements? The case could get dismissed unless the state has other evidence aside from the statements, in which case the state can still go forward.
What Interactions between an Officer and an Individual Can Be Interpreted as Being Detaining Actions?
Interviewer: What kind of contact occurs between a police officer and a suspect that would be interpreted as the suspect being detained?
David: There are several levels of police interaction with the citizenry. The first level is what we call consensual encounters between a law enforcement officer and citizens. For example, law enforcement can just simply walk up to someone and start engaging that person in conversation. Like, “Hi, I’m officer so and so. I was just wondering what you are doing here. What’s that crowbar that you have in your hand?” They can just ask questions like you or I could go up to another person on the street and just start engaging them in conversation. No difference.
Temporary Detention: Terry v. Ohio
That’s the lowest level of police-citizen interaction, consensual. The next level is the temporary detention. The temporary detention case law started with Terry v. Ohio, a US Supreme Court case. In that case, a law enforcement officer was patrolling an area of businesses and it was after hours, so the businesses were closed. He observed an individual that was walking up and down a row of businesses. The individual seemed to be peering in the windows of the establishments.
Based on the officer’s training and experience, he concluded that the individual was casing the businesses possibly for the purpose of breaking into one of them. The officer temporarily detained the individual to ask questions about, “What are you doing here? What is your purpose? Why are you looking in those businesses?” The was trying to determine whether or not a crime had been committed, was being committed or was about to be committed.
An Officer Must Have Reasonable Suspicion a Crime Has Been, is Being or Will Be Committed to Justify a Temporary Detention
To justify a temporary detention, the law enforcement officer must have a reasonable suspicion to believe that a crime has been committed, is being committed, or is about to be committed. A reasonable suspicion has to be based on articulable facts.
In other words, the officer has to point to specific facts that based on his/her training and experience led the officer to believe that there might be criminal activity afoot. The officer has the right to temporarily detain the individual to try to ascertain whether a crime is, has or is about to be committed.
Temporary Detention May Lead to a Criminal Investigation
If the officer’s reasonable suspicion is satisfied, in other words, if the officer receives information that leads the officer to believe that no crime is afoot, then the officer has to let the person go. Conversely, if the officer develops further facts through questioning or otherwise that indicate that a crime is or possibly is about to be committed, then the officer can continue his or her investigation. This investigation may lead to the next level of police contact.
Officers Can Use Reasonable Force to Detain an Individual
An officer can use reasonable force to detain a person even temporarily. If the person, for example, tries to run, the officer can use reasonable force to detain that person to stop them from running. Now, the next level of police-citizen contact is the arrest, and in order to make an arrest, the officer needs probable cause to believe that a crime has been committed and that the individual the officer wants to arrest is the person who committed the crime.
Are Standards of Truth Subjective or Objective Standards?
Probable cause is essentially, enough facts and circumstances, coupled with the officer’s training and experience that would lead a reasonable person to believe that a crime had been committed—and that the person charged committed the crime. What’s interesting about all of these standards of truth is that they are not subjective standards, they are objective standards. Let me explain that.
A subjective standard would mean what the actual officer thought. So, let us say for example, the officer thought that he or she had sufficient information to rise to the level of probable cause that crime A was committed. As a result, the officer arrested the person based on crime A.
Later on down the road, in court, it is determined that there was not probable cause to believe that crime A had been committed. However, the facts known to the officer at the time would have led a reasonable officer to believe that crime B had been committed.
The arrest will be upheld based upon crime B. Subjectively, the officer believed crime A had been committed, but the officer turned out to be wrong. However, objectively looking at the situation, there were sufficient facts to support crime B having been committed. The court will uphold the arrest, even though the officer in his or her mind subjectively got it wrong.
Interviewer: What have you learned about people’s behavior and the reaction to being arrested and prosecuted for a crime, like what human insights have you gained through the whole process?
Make Decisions Objectively, Not Based on Emotion: While It Is Common to Experience Stress and Embarrassment after an Arrest, It Is Helpful to Your Case to Find Some Emotional Balance
David: Being arrested and charged with a crime is an extremely stressful event. It is very difficult for people to look at their situation objectively, because they are going through all of the emotional upheaval, all of the stress, the embarrassment. These are all of the normal human reactions that one might experience emotionally and mentally from being arrested.
What happens is that it becomes very difficult for the person arrested to look at their situation in a calm, cool, and objective fashion, which is very important to do in a situation where one is facing criminal charges.
As an accused, you do not want to make emotional decisions about how to handle your case. You want to make decisions that are based upon the facts of your case coupled with the law that applies to those facts. For example, you want to look at your case objectively to determine, “Okay. Do I have a good case to defend myself? Do I have a weak case to defend myself? Does the state have a strong case or a weak case?”
What Are the Facts of Your Case? Does the Prosecution have a Weak or a Strong Case? An Attorney’s Input Is Important in the Decision-Making Process
It is very hard for someone to determine strengths and weaknesses of their situation objectively when they are going through all of the emotional stress of being arrested. That is why it is so important to have an experienced attorney who can help you look at things objectively. An attorney can help you, as the accused, identify when you are looking at things emotionally and perhaps not making the best decision for yourself versus when you are looking at things objectively.
For example, this is similar to when businesses make decisions about how to spend money. Let’s say for example, a business is sued by someone. A business may look at that either subjectively or objectively. Subjectively, the business owner may look at the situation and say, “I didn’t do anything wrong. This suit never should have happened and I’m not going to give in. I’m going to fight this to the very end.” That would be the subjective way that a business owner might look at that, it is very emotionally driven.
Conversely, perhaps a more savvy business owner might look at the same situation and say, “You know, look, there are some facts here that support my position that I didn’t do anything wrong to get sued. On the other hand, there are some facts that a jury might listen to and might think that I did do something wrong. I know in my heart I didn’t do anything wrong, but sometimes people who see the same facts see things differently. Am I going to spend money to go and fight this all the way to trial and potentially hurt my business, or am I going pay a small amount of money as a settlement and be done with it.”
Criminal law should be a combination of both. If you are right and you know you are right, sometimes you need to stand on your principles. If you’re innocent and you know you are innocent and here is the key—you think the facts are on your side to prevail with that—then you may want to take that to trial.
On the other hand, even if you think and know you are innocent, if you look at the facts and you determine that it is likely a jury is going to say you did the crime, then you may want to try to reach a reasonable resolution to the criminal case versus going to trial.
An Attorney Provides Objective Input into the Decision-Making Process
An attorney who is experienced and who tends to know how a jury thinks is probably in the best position to let you know, “This is a case I should take to trial or this is a case where the facts are against me and I should try to work this out.” Human reaction and emotions play a very important role in a criminal case. They can lead you in the wrong direction sometimes. It is very important to look at things as objectively as you can. Although hard to do, it is important.
For example, let us say that someone is accused of a rape and the police did a rape exam on the alleged victim. The accused’s bodily fluids were found on the alleged victim, there was skin from the accused underneath the alleged victim’s fingernails and there is a third party witness who heard the alleged victim screaming. In such a circumstance, even if you know you did not do it, it is important to recognize that the facts point otherwise.
All of those things could happen in an aggressive but consensual sexual situation. There could be the accused’s DNA under the alleged victim’s fingernails, there could be the victim screaming, all consensually. There could be the accused’s DNA found on the alleged victim, and yet, it was not a crime.
You have to look at that situation and you have to see what other facts are there that either point towards guilt or point towards innocence. For example, maybe there are emails where the alleged victim expressed an interest in aggressive sexual relations that would be strong evidence supporting the defense.
On the other hand, if the alleged victim has a reputation for being very shy and nonsexual, that might be something that a jury could take into consideration as well.
Interviewer: How much of a role does a person’s reputation play in these circumstances?
Reputation Can Be Based on Perception
David: Reputation evidence in a criminal case is extremely tricky business. Courts tend to not like it because there is potential for abuse. One’s reputation is something that is kind of a moving target. It is based on people’s perception. In order for reputation evidence to be introduced in a criminal case, it has to be relevant to the elements of the crime. For example, let us say that an individual who is charged with a violent crime has a reputation in the community of peacefulness.
Is Reputation Evidence Relevant to This Particular Case?
That would be relevant to the crime charged because it is the opposite of what has been alleged. It has been alleged that the person is violent or was violent. Therefore, their reputation in the community that they are a peaceful person would tend to contradict that. That is something that you could introduce as evidence in a criminal prosecution for a violent case. Now, the type of reputation evidence that gets introduced is a person’s general reputation in the community for a particular trait.
It is inadmissible to have John Smith come and testify that the accused is a good person and that he is known him for years, and he thinks he is a wonderful person. That is something that would be inadmissible. However, that same person who knows the person in the community knows other people that know the accused and could talk about their general reputation in the community. That is admissible.
You just cannot have individuals coming and saying, “Here is what I think of John Smith.” It’s very complicated, and courts do not like it, because courts tend to like sort of hard, set facts and reputation is a very ambiguous moving target.
Interviewer: What are common ways that people unintentionally incriminate themselves while a case is pending?
David: let us take for example, a case where a man has been accused of molesting a family member, a child. These allegations, according to the child, stem from the child being in the bathtub and the man supposedly touched the child while the child is in the bathtub. The police may confront the man about those. They may come and talk to the man and say, “There have been some allegations made and we just have a few questions. Do you ever assist child A in taking a bath?”
The Police Are Skilled at Asking Questions Where the Answers become Admissions of Some Kind of Guilt
Now, to that parent or to that man, it may be very normal to help the child take a bath. Maybe it is a young child and they need some help. So, thinking this is just an innocent parental or family member type of activity to assist in, they say, “Sure. I help the child take baths.”
Not knowing of course that the allegation is that the alleged inappropriate touching happened in the bath, because police usually do not fill the accused in on those sorts of facts until after they get the accused to make admissions.
To Avoid Making Unintentional Incriminating Statements, It Is Always Advisable to Have Your Lawyer Present during Questioning
In the scenario I just gave, the accused just told the police something that confirms what the alleged victim said, which is that it ties the man in to the bath tub and the child. The bottom line is that it is better never to tell the police anything when you have been accused of a crime. It is almost never in the accused’s best interest to talk to the police without having a lawyer present. Ninety-nine percent of the time, once a lawyer becomes involved, the lawyer’s advice is, “Do not say anything to the police.”
I cannot tell you how many cases there are where the police will take comments one makes and manipulate those comments. Most people have seen the movie “My Cousin Vinny.” There is a scene where the sheriff goes up to Ralph Macchio and says, “You shot the clerk,” and in response to that, Ralph Macchio says, “I shot the clerk?”
Now, his tone of voice denoted a question meaning, “You’re accusing me of that?” However, when law enforcement recounted the statement in a court of law, it came out as, “I shot the clerk.” The inflection that the accused used that made it a question, not a statement, got left out of the discussion and the prosecution said he admitted to shooting the clerk when in fact he was retorting with a question, “I shot the clerk?”
An Example of Unintentional Self-Incrimination When Responding to Police Questions
Interviewer: Have you seen similar situations to that?
David: Absolutely. Let me give you an example. A sex case where the question is, “Did you know the individual’s age?” Let us say that the individual is underage and law enforcement shows the accused a document that shows the person’s real age, and that that document shows that the person is underage. When law enforcement shows the document, they say to the accused that, “This person was underage, weren’t they?” Now the person responds by saying, “Well, yes.”
Now that could be used to say that the accused admitted he knew that the person was underage, but in fact, all the accused was doing was acknowledging the sheet of paper law enforcement had just showed him. It does not mean that at the time that the alleged event happened that the accused knew that the person was underage. The accused was just acknowledging the sheet of paper he had just been shown. Of course, however, that is not the way it comes out when law enforcement recounts the statement in court.
Interviewer: How do people know that they are being investigated in the first place?
David: There are several ways that a person can find out. One is that the alleged victim can say something. For example, if you have a neighbor dispute and the alleged victim says, “I just called the police on you.” That’s one way. Usually though, the first time the accused knows that they are under investigation is when the police show up unexpectedly, sometimes at 5:00 in the morning, wanting to ask questions. Or, worse yet, law enforcement appears with handcuffs ready to take the person into custody. It is not unusual for law enforcement to have been investigating a criminal episode or ongoing criminal enterprise for years without the individuals involved knowing of the investigation, especially in federal investigations, which tend to last a long time.
What Surveillance or Investigative Techniques Are Employed by Law Enforcement during a Criminal Investigation?
Interviewer: What techniques do law enforcement use when they are investigating an individual?
Law Enforcement Incorporates Methods from Surveillance to Informants When Conducting a Criminal Investigation
David: Law enforcement uses a wide variety of investigative techniques. They may employ video surveillance or engage in the wiretapping of phones or computers. It may involve researching records. They may subpoena emails, phone records, or actually use physical surveillance where they are following an individual.
They may also be talking to other individuals. For example, in a drug conspiracy there may be 30 other individuals involved in the conspiracy. Some of those individuals may get arrested, and then, law enforcement will turn those individuals into snitches against the people who have not been arrested as yet.
Informants and Substantial Assistance
Interviewer: When someone becomes an informant, do they get a promise of a sentence reduction or something like that?
David: It depends. The state system often has something called substantial assistance, and the individual will enter into a substantial assistance agreement. Such agreements often reward the accused reductions in their sentence based on cooperation that produces a certain number of prosecutable cases. It then becomes in that person’s best interest to get as many people caught up in the system as they can.
Interviewer: what is an appropriate way for someone to address a police officer if they would rather speak to an attorney first?
David: We all know that at some point, chances are we are going to be stopped for some sort of traffic offense. Very few people go through life without having been stopped at some point for speeding, running a red light, stop sign violation or something similar to that. The time to think about how you are going to handle it is not when you are under the stress of the situation, but beforehand.
Plan Beforehand How You Will Respond to a Police Officer
“If this ever happens to me, what am I going to do?” Let us just go forward with this traffic situation. An officer pulls an individual over for speeding. The officer approaches the car and the officer says, “Do you know why I pulled you over?” “No, I don’t, officer. Can you tell me why you pulled me over?” “Do you know how fast you were going?” Now, there are many things you can say in response to that.
There Is NEVER a Reason to Be Rude in Your Interactions with Law Enforcement
I would suggest saying something to the effect of, “To my knowledge I was going the speed limit,” or just say, “Well officer, you know, respectfully, you pulled me over, was there are problem with my speed?” “Are you alleging a problem with my speed?” What you should not do is say, “Yeah, I was speeding. That’s why you pulled me over. You got me, I was speeding.” Always be respectful to the law enforcement officer. There is never a reason to be rude.
For example, if you want to ask for an attorney or if you want to remain silent, you say, “Officer, I have great respect for the job that you are doing, but I am not able to answer your questions at this time. I would like to remain silent.” If the officer gets mad about you being respectful in that manner—then they are not a very good officer and I doubt you can please them anyway.
It Is Advisable to Remember the Police Questions Are Designed to Prompt Admissions
Interviewer: Why do they ask that question? Does that open up a whole chain of events sometimes where they will ask that one question, “Do you know how fast you were going?”
David: They are obviously trying to get you to make some sort of admission. It is kind of a damned if you do and damned if you don’t question. This is because if you say, “No, I don’t know how fast I was going,” then you have thereby robbed your ability to later say I was going under the speed limit. When you go later and say that you were driving under the speed limit, the officer will say, “When I stopped you, I asked if you knew how fast you were going and you said you didn’t know,” so that makes it look like you are lying when you say that you were going under the speed limit.
This may be the best way to answer the question, “Yes officer, I do know how fast I was going.” Now, that does not mean that you will have to say a number because the officer’s question was, “Do you know how fast you were going?” If you say, “Yes officer, I know how fast I was going,” then you have answered the officer’s question and you really need not say more. It then puts the ball back in the officer’s court to say, “Well, how fast were you going?”
Then you can just simply say, “Well officer, with all due respect, is there an issue with my speed? Do you have an issue with my speed?” Again, you have placed the ball back in the officer’s court and you have not answered what they are trying to get, which is they are trying to get you to admit you were speeding and you keep putting it back in the officer’s court until eventually they give up.
The Officers May Try to Make You Feel the Situation Is Not Serious, So You Feel Comfortable Answering Their Questions
The officers try to make you feel that they are just asking casual questions. They try to make you feel like, “It’s no big deal,” or “If you just talk to me, we’ll get this whole thing sorted out and it’s not going to be a problem if you’re just honest with me.” That is how they try to make you feel, and then of course, they give you the ticket.
What Two Things Are Important to Remember When Speaking with the Police?
Here are two important things to remember. Number one, officers are not your friend; they are there to try to hold you responsible for doing something they perceive is bad. That is their job. If they pretend to be your buddy, they are lying.
Second, they absolutely will use anything you say against you. They will not go lighter on you just because you were honest with them. That is the biggest mistake. People think if they are just honest that law enforcement will go easier on them.
Now, I cannot say that never happens, but nine times out of ten, they do not go easier on you. They use your statement as a sledgehammer to prosecute you.
Interviewer: let us say I have been arrested for a crime, how public is my situation going to be? Will my friends and family find out? Will my job find out?
There Are Websites That the Post Photos and Names of People That Have Been Recently Arrested
David: It depends. There are several websites like mugshots.com that will post people’s mug shots on a daily basis. The newspaper or the news may get wind of the arrest if it is high profile enough. Usually, lawyers will send brochures advertising their services to anyone who is arrested, so most likely, a slew of mailings from lawyers will show up in the person’s mailbox.
Lawyers Will Send Advertisements to the Home of a Person Recently Arrested
Which of course, if your spouse does not know you were arrested, they open the mailbox and there are 30 letters from different criminal defense attorneys. They may ask, “Why are we getting all these?” Then you have got some tough questions to answer, and of course, if you have been arrested and put in jail and you do not get out right away, your boss is going to know that you did not show up at work and you may have to explain that.
Arrest Records Are Public Records Unless Sealed or Expunged
Interviewer: Is there any sort of privacy if that person gets arrested for something they did not commit yet they get ostracized because their photo was published? Is there anything they could do about it or unfortunately that is one of those things that they will just have to live with?
David: Arrest records are public records unless they are sealed or expunged. Sometimes, sites will accept payment to remove the photo.
Interviewer: It just seems like it is you and something that could ruin someone.
David: We live in the age of Google. For example, if you start out dating someone, and a lot of times, people who are dating someone new will Google their name.
Interviewer: Have you had any cases in recent days where social media plays a big role?
David: Yes. We do handle, sometimes, high profile and media cases. As a general rule, I do not communicate with the media. It is best not to try a case in the media if you can avoid it. Sometimes it is unavoidable. For example, George Zimmerman had to respond to the media coverage that he was getting. Also, sometimes, in the modern day, people are putting everything about their life in social media.
It Is Advisable NOT to Post Details about Your Personal Life While a Criminal case Is Pending
Many times people write things that they do not realize will come back to haunt them. For example, in a criminal case they may go on their Facebook site and brag about how much they like cannabis when they are facing a marijuana charge. That is most probably not a good idea. Prosecutors have access to social media like everyone else.
It Is in Your Best Interest to Retain an Experienced Attorney If You Are Facing Criminal Charges
Interviewer: Would there be anything else that you like to share with us based on what we have talked about today?
David: The critical thing is not to go it alone. Of great importance is finding an attorney with experience who knows the ins and outs of criminal law. At Katz & Phillips, we have a tremendous amount of practical, real world experience handling all of the difficult intricacies of a criminal case. Prosecutors tend to be experienced, they have handled a lot of cases and they have a team of law enforcement on their side. Do not try to go it alone, there is no reason to do that when you have experienced legal help available.
Interviewer: How many cases do you think you’ve handled as far as criminal law goes?
David: During the 18 years that I have practiced criminal law, I have been wearing different hats. Specifically, I am a former prosecutor, I’m also a former FBI Special Agent, and of course, I have been a criminal defense attorney. So, during that period of 18 years, I have handled thousands of criminal cases of all varying types.
Interviewer: Do you think that working as a prosecutor and a federal agent has helped you as a defense attorney? Do you think that is an advantage?
David: Having been a state prosecutor was extremely valuable experience in terms of how that relates to being a defense attorney. I liken it to being able to put together a car. If you can put a car together, then, by extension, you can take one apart. Prosecutors put together cases. They have to prove their case, and so, once you know what a successful prosecution case looks like, you know what to look for in terms of holes in the prosecution’s case.
Likewise, having been a former FBI Special Agent, I am familiar with what it takes to properly investigate a criminal case. You are able to better identify when there are holes in an investigation. You can see things that should have been done that were not.
Interviewer: What are some of the most common types of crimes that you represent people for?
David: On a day-to-day basis, I represent individuals who have been charged with theft or fraud-related crimes, drug-related crimes, crimes of violence like domestic violence, battery, and assaults. I handle cases involving murder or attempted murder, traffic cases such DUI or driving on a suspended or revoked driver’s license. I work with a very wide variety of types of cases.
Interviewer: Did you ever work with any white crimes?
A Criminal Defense Attorney Will Handle White Collar Types of Offenses
Interviewer: Can you provide some examples of those?
David: For example, I have worked with individuals who have been charged with mortgage fraud. I have worked with individuals who have been charged with not paying state taxes. I have worked with individuals who have been charged with workers’ compensation fraud or public assistance fraud. I have assisted clients who have been charged with offenses such as embezzlement. For example, I once represented an accountant who had allegedly embezzled from one of his employers that he did accounting for. I work with a wide variety of white-collar types of theft or fraud-related cases.