You, dear readers, know my advice about talking to the FBI: don't. If the FBI — or any law enforcement agency — asks to talk to you, say "No, I want to talk to my lawyer, I don't want to talk to you," and repeat as necessary. Do not talk to them "just to see what they want." Do not try to "set the facts straight." Do not try to outwit them. Do not explain that you have "nothing to hide."
Shut up, shut up, shut up, shut up, shut up, shut up.
This advice is on my mind of late what with two former Trump folks — George Popadopouluos and Michael Flynn — pleading guilty to the federal crime of lying to the FBI.
Plenty of people agree with me. Sometimes, though, I hear different advice. Sometimes I hear this:
No. Or more accurately: no, unless you have first prepared exhaustively with an attorney.
This is not a casual conversation about who took a bite out of the roll of cookie dough in the fridge. This is serious complicated stuff, and your whole life hangs in the balance. Platitudes aside, going into a law enforcement interview armed only with the attitude "I'll just tell the truth" is poor strategy.
Here's why.
No offense, but you may be a sociopath. If the FBI wants to interview you, it's possible you're some kind of Big Deal — a politician or a general or a mover and shaker of some description. If you're kind of a big deal, there's a significant possibility you're a sociopath. You really don't know how to tell the truth, except by coincidence. You understand what people mean when they say "tell the truth" but to you it's like someone saying you should smile during the interview. Really? Well, I'll try, I guess, if I remember. You've gotten to be a big deal by doing whatever is necessary and rather routinely lying. It may be difficult for you to focus and remember when you are lying because lying feels the same as telling the truth. If someone shoved me onto a stage and said to me, "look, just hit the high C cleanly during the solo," I could take a real sincere shot at it, but I wouldn't really know what I was doing. If you think you can go into an FBI interview and "just tell the truth," when it's not something you're used to doing, you're deluding yourself. You're not going to learn how in the next five minutes.
You're almost certainly human. There's a commandment about not bearing false witness. But rules don't become commandments because they're really easy to follow. They become commandments because we — we bunch of broken hooting apes — are prone to break them. Everybody lies. Humans lie more under pressure. FBI agents are trained in two dozen ways to ratchet up the pressure on you without getting out of their chair — verbal, nonverbal, tone, expression, pacing, subject changing, every trick that any cop ever used in the box. You're only human. Unprepared, you will likely lie. Smart people, dumb people, ditchdiggers and neurosurgeons, lawyers and accountants, the good and the bad, they all lie. Usually they lie about really stupid things that are easily disproved. I'm not making a normative judgment here; surely it would be nice if we didn't lie. I'm making a descriptive statement: humans lie. Saying "I'll just go in and tell the truth" is like saying "I'll just start being a good person." Well, good luck. Look, you admit to being fallible in other respects, right? You admit sometimes you're unkind when you're tired, or sometimes you drink or eat more than you know you should, or sometimes you procrastinate, or sometimes you have lust in your heart? What makes you think you're infallible about telling the truth?
Dumbass, you don't even know if you're lying or not. When an FBI agent is interviewing you, assume that that agent is exquisitely prepared. They probably already have proof about the answer of half the questions they're going to ask you. They have the receipts. They've listened to the tapes. They've read the emails. Recently. You, on the other hand, haven't thought about Oh Yeah That Thing for months or years, and you routinely forget birthdays and names and whether you had a doctor's appointment today and so forth. So, if you go in with "I'll just tell the truth," you're going to start answering questions based on your cold-memory unrefreshed holistic general concept of the subject, like an impressionistic painting by a dim third-grader. Will you say "I really don't remember" or "I would have to look at the emails" or "I'm not sure"? That would be smart. But we've established you're not smart, because you've set out to tell the truth to the FBI. You're dumb. So you're going to answer questions incorrectly, through bad memory. Sometimes you're going to go off on long detours and frolics based on entirely incorrect memories. You're going to be incorrect about things you wouldn't lie about if you remembered them. If you realize you got something wrong or that you may not be remembering right, you're going to get flustered, because it's the FBI, and remember even worse. But the FBI would never prosecute you for a false statement that was the result of a failed memory, right? Oh, my sweet country mouse. If you had talked to a lawyer first, that lawyer would have grilled you mercilessly for hours, helped you search for every potentially relevant document, reviewed every communication, inquired into every scenario, and dragged reliable memory kicking and screaming out the quicksand of your psyche.
You have no idea what you're telling the truth about. Look, you think that you can prepare to tell the truth. But at best you can prepare to tell the truth about something you know about and expect and understand. So let's say I know I'm going to be asked about whether I'm an ass on Twitter. I'm ready to come clean. I am definitely an ass on Twitter. But I get in there and the agent is all, "Mr. White, isn't it true that in October 1989 you accidentally hit on a major news anchor when you saw her from behind at the copy machine and thought she was another intern at CBS and so you sidled up for a full-on 'how YOU doin" and then she turned around and you saw who it was and you stammered something and spent several hours in the stairwell?" See, I was not mentally and emotionally prepared to tell the truth1 about that. So we're off to the races. I went in with the best of intentions, I got sandbagged with something completely unexpected, I panicked like the grubby little human that I am, and I lied.
You can't even talk properly. If you're an attorney and you need to prepare someone for testimony, you know: we're a bunch of vague, meandering, imprecise assholes. We talk like a water balloon fight, sort of splashing the general vicinity of the answer. We don't correct questions with inaccurate premises that don't matter, we generalize and oversimplify and summarize and excerpt and use shorthand that only exists in our heads, and we do this all day every day in casual conversation. A huge amount of conversation goes on between the words and by implication. If I'm walking past your office and ask "did you eat?" I don't need to vocalize that I mean did you eat lunch and if not would you like to go to lunch. You can respond "I have a meeting" and I will understand that you mean you understand and acknowledge that I'm asking you to lunch but you are unable to go. Huge parts of our conversations are like that. Usually it doesn't matter. But if you can get charged with a federal crime if something you say is, taken literally, not true, it matters like crazy. It takes training and an act of will to testify — to listen to the question, to ask ourselves if we know what the question means, to ask ourselves if we know the answer to that question and not some other question it makes us think of, and to give a precise answer that directly answers the question. So not only do you have to go into that FBI interview and tell the truth — you have to be prepared for a level of precision and focus that you almost never use in your day-to-day communications.
You don't know if you're in trouble. You say "I'll just go and tell the truth." Well, if you mean "I'll just go confess to anything I've done wrong and take the consequences," that's one thing. But if you mean "I'll just tell the truth because I've done nothing wrong and I have nothing to hide," you're full of shit. You don't know if you've done something wrong yet. Do you know every federal criminal law? Have you applied every federal criminal law to every communication and meeting and enterprise you've engaged in for the last five years? "But . . . but . . . the FBI said they just wanted to talk about that meeting and there was nothing wrong with that meeting." Dumbass, you've got incomplete information. Not only do you not know if there was anything wrong about that meeting, you don't know if that's what they'll ask about. If you're saying "I'll talk to them because I have nothing to hide," you are not making an informed choice.
Everybody lies. Especially the FBI. Look, mate: the FBI gets to lie to you in interviews. They can lie to you about what other people said about you. The can lie to you about what they've seen in your emails. They can lie to you about what they can prove. They can lie to you about what they know. Authority figures barking lies at you can be confusing and upsetting and stressful. Our brain says "I didn't do that thing but they say they have emails so maybe did I do that thing or sort of that thing?" Many people react by blurting out more or less random shit or by panicking and lying. Do you have what it takes not to do that? Better be sure.
Remember: the FBI wins nearly any way. Confess to a crime? They got your confession. Lie? They almost certainly know you lied, and already have proof that your statement is a lie, and now they've used the investigation to create the crime.
The answer is to shut up and lawyer up. A qualified lawyer will grill you mercilessly and help you make an informed rational choice about whether to talk. Then, if you decide to talk, the lawyer will prepare you exhaustively for the interview so you can spot the pressure tactics and interrogation-room tricks, and so you will have refreshed your memory about what the truth is.
Your best intentions to tell the truth are a thin shield.
- Ayup. I beg your pardon, Leslie Stahl. ▲
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
- The Fourth of July [rerun] - July 4th, 2020
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019

What is your opinion of the FBI choosing to plea out Popadopouluos and Flynn under false statements? Do you think they would have let the two of them walk if they had not made the mistake of talking with the FBI earlier, or would the FBI have charged them with lesser or equivalent offenses based on what they know?
Serious question from a US resident but not citizen – does it mean everyone should have a lawyer on retainer or someone in the phone book to call? Or can you find one after the encounter – and how to find good one?
Maybe another: What you know is the truth may be known only by you (and God, who's not available to confirm your "truth".) Everyone else knows a different truth.
Wondrous. Wonderful. Awesome. Awful.
Lesley Stahl was kinda hot in 1980. 1989 I'm not so sure about.
http://www.gettyimages.ca/detail/news-photo/american-broadcast-journalist-lesley-stahl-reports-fom-the-news-photo/84226456#american-broadcast-journalist-lesley-stahl-reports-fom-the-lawn-of-picture-id84226456
I hear these instructions to never talk to the authorities (including police) without a lawyer present but I wonder just how far is that intended to go? Last Friday I witnessed a car accident and pulled over and told the cop what I saw because no one else did and one party was clearly at fault. Should I not have done that without first consulting an attorney? If the cops knock on my door and want to ask me if I heard gunshots nearby earlier should I refuse to talk to them? If these sound like ridiculous questions I really don't mean for them to. I just want to know where the line is between "that's fine" and "get a lawyer".
A second unrelated question: as a regular person who doesn't "have an attorney" should I go find one now and have a pre-existing relationship just in case? If so how do I do that? If not then when the time comes what do I do, just google "lawyers near me" and pick one at random? I don't even know where to start.
Quick question: If you don't have a Lawyer and if the FBI or police can lie to you, what's to stop them impersonating a lawyer?
If an FBI agent is a suspect, and they are grilling him, is he allowed to lie because he's an agent? And can the grilling agents be prosecuted for lying to the FBI if they lie to try to get the suspect agent to say something incriminating?
"You can't even talk properly." So true. Everyone should read a deposition transcript at least once in their life, if only to realize how utterly imprecise and rambling are our every-day speech patterns.
Dear Brian and David: thinking along the same lines I looked up the statute (18 U.S.C. § 1001, the one which tripped Martha Stewart) and found that:
First, nothing obviously stops a federal officer impersonating a lawyer.
Second, a suspect isn't allowed to lie simply because he's an agent.
Section 18 U.S. Code Chapter 47 covers "Fraud and false statements". There you will find § 1001, "Statements or entries generally" which provides in relevant part (subsection (d)) that:
Seems that impersonating a lawyer is a perfectly straightforward intelligence activity. But an FBI agent who is a suspect would not be "lawfully authorized" to lie. I suspect however a different kind of anomaly arises where two FBI teams have reason to investigate each other. Then both would be entitled to lie in furtherance of their lawful duty.
This kind of situation has arisen in US law before, as when for example Wyatt Earp was hunting the Clantons and associates under colour of (federal!) law in furtherance of his duties, even while (local Sheriff) Johnny Behan had issued a warrant for his arrest.
Such intra-legal disputes have a long history, cf. writs of Middlesex and other weapons in the long conflict between Courts of Common Pleas versus the King's Bench – compare Slade v. Morley, where the Courts finally did their duty in the absence of effective action by Parliament.
Even the competition between Exchequer and Chancery courts could ensnare the King's men. But I always preferred the Earp/Behan conflict as an example because there's no question that Behan was more corrupt, Earp got the girl, and Behan was arrested for fraud himself.
"If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him."
— Cardinal Richelieu
I have a question: if the FBI honestly wants information, why can't they just put their questions in writing? Then a lawyer can help you answer said questions, and the FBI can accurately get their information. Since its in writing it will be easier for them to remember, and since you went over it carefully with a lawyer there will be less chance for inaccuracies to creep in. Doesn't that seem like a much better way to get information.
There are limits on what law enforcement can lie about. Impersonating an attorney would deprive you of significant due process rights, and would be unconstitutional.
Telling you "We've got your fingerprints all over the murder weapon" or "Your so-called friend you were arrested with has already told us what you did. If you want my help, you had better offer me more information than he did" is perfectly legal.
There's a classic scene in one episode of COPS where the officer says to a guy "I'm not going to waste my time arresting you over some weed." OK, the weed is in my center console. "Turn around and put your hands behind your back. You're under arrest for possession of marijuana."
And, of course "I'm not a cop" is also legal for law enforcement to say and doesn't make what you're doing "entrapment".
They (generally) cannot lie about whether something is a crime or not. "Go ahead and do X. It's not even illegal." "Just tell me what happened. They repealed the law against X last year, so it's not even going to get you in trouble" — those kinds of things are problematic if they're doing it to induce you to commit the crime they said wasn't a crime.
This only applies to situations where LEO are doing their jobs. An FBI agent who is being investigated by the FBI can"t get away with lying to the agents interviewing him/her (unless there's something really meta going on, where the cop being investigated is investigating the investigators or other head-asplodey thing.)
The only things ever to say to an FBI Agent who wants to ask you questions:
1. Am I under arrest? Am I free to go?
2. I do not chose to speak with you.
I'm not a lawyer, but speaking from bitter experience.
>accident and pulled over and told the cop what I saw because no one else did and one party was clearly at fault. Should I not have done that without first consulting an attorney?
Do you have a dashcam? If so, was it on? If it was on, is the car accident clearly visible in the picture?
If you don't have a dashcam, write down what you saw now, and keep that content in a very safe place. If there is any type of lawsuit, or even the threat of one, in the future, you can be called as a witness, and if your testimony does not jab with what you told the officers at the time of the accident, you get to spend time in jail, for lying to the police.
If you do have a dashcam, talk to a lawyer, and let them turn the footage over to the police.
>If the cops knock on my door and want to ask me if I heard gunshots nearby earlier should I refuse to talk to them? If these sound like ridiculous questions I really don't mean for them to. I just want to know where the line is between "that's fine" and "get a lawyer".
Get a lawyer. Unless you work on a rifle range, and can easily differentiate the type of ammunition used, and the type of rifle used, just from hearing the rifle being fired, you won't be able to tell the difference between a car backfiring, and a rifle going off, and other, random, one time only pops.
There was no rifle, but you said there was. You earn a two year stay in a prison, for lying to the cops. And yes, they will do things like that, just because they can.
>as a regular person who doesn't "have an attorney" should I go find one now and have a pre-existing relationship just in case? If so how do I do that?
Yes. Set an appointment with a couple of criminal lawyers, and talk to them. You want one that is experienced enough to know what to do, regardless of your legal situation. FWIW, most of the time, it doesn't matter what type of law your lawyer practices, they will retain a lawyer to help you, because your specific situation is outside of their specialty.
IOW, your lawyer is good enough to bail you out at midnight on Saturday, but you'll have a different attorney representing you in court. And still another attorney representing you, for the sentencing hearing — which is where you need to be willing to spend the really big bucks.
One jailbird told me to use the public defender for the trial, and a US$5,000/hour lawyer for the sentencing hearing, because the latter can con a judge into sentencing you for time served, even if you killed a dozen people, whereas the former might, with a lot of luck, be able to keep out of death row, given the same circumstances.
During the appointment, discuss any potential scenarios, with which the cops might want to talk with you. You're paying for the appointment, and as such, they are mandated to client-confidentiality. OTOH, don't admit that you killed all your neighbors, during this interview. One defense lawyer claims that when clients admit guilt to him, right off the bat, they probably won't even be able to get a reduced sentence.
A couple of potential questions to ask the lawyer:
If the cops wanted to talk to you, which lawyer would you retain?
Why would you retain that lawyer?
What is your specific area of specialty?
How specialized within that area are you?
# In a small town, a general practitioner is probably the best you can get.
About the only time you probably won't have the option of getting legal counsel, is if law enforcement comes investigating you, as a potential suicide victim. Typically, the only option they have, is to take you for a psychiatric evaluation. Depending upon the state, you have between five minutes, and an hour, to decide to voluntarily submit to an evaluation. If the cops choose involuntary evaluation, even if the evaluator decides you are not suicidal, you get to spend at least four days away from home.
Pick the voluntary option, and call your lawyer on the way to the evaluation center. You can have a lawyer present, during the psychiatric evaluation, because it is a legal proceeding. If they claim HIPPA prohibits it, then point out that federal case law requires that your lawyer be present. Depending on the state, the person doing the evaluation is required to read you a Miranda Warning, _and_ a similar notification, stating that you can spend time in an institution dedicated to treatment of mental issues. Skip either of those warnings, and the evaluator is on the losing side of a civil lawsuit — depriving one of one's liberty, under false color of law.
BTW, if you are suicidal, neither law enforcement, nor hospitals will be of any help. Roughly 30% of the people under suicide watch successfully commit suicide, with the watchers not being aware that the person has killed themselves. Roughly thirty percent unsuccessfully attempt suicide. Only 40% do not attempt suicide.
If you are suicidal, the best preventative is to go stay with a good friend, who will sit with you, during your crisis time frame. This is one time when amateurs are better for longevity than those who have been professionally trained in the field. The more training in psychology one has had, the more likely the person being looked after successfully commits suicide, whilst under a suicide watch.
I am not a lawyer. This is not legal advice.
@TPRJones
If you pull over and ONLY are giving testimony about an accident that you witnessed, then you probably don't need an attorney. As an attorney I would suggest getting an attorney to discuss this with however. The moment the officer asks you anything about yourself except what you saw, shut up and get an attorney.
Name, rank, and serial number – no attorney
where where you heading – attorney
If you want an attorney on retainer ( and I am an attorney that works exclusively on retainer), then you pretty much need to be able to justify to yourself the cost. I start at $6,000 a year, but if one of my clients saw an accident, I would hope they would call me before telling the cop anything… Even if it happened at 2am on New Years I would rather show up and be there than have them say a word to an officer without me being there.
Text message from 20 yo daughter:
"i'm reading popehat and ken white has ur voice in my head because you literally sound the same. especially in the post about lying to the fbi"
I have succeeded as a parent.
One more bullet point to add to the excellent list in the blog post:
If you're a nice person, or think of yourself as one. The impulse to be cooperative, to tell people what they want to hear, is extremely strong, especially for those who think of themselves as nice people. An interrogator can absolutely take advantage of that to get you to say what they want you to say, and then indict you for saying what they told you to say.
There was actually a case in Tennessee where the police lied about being a lawyer. The trial judge actually allowed it. That judge was provided with a new a–hole by the appeals court.
I don't think it is a crime for law enforcement to impersonate a lawyer but it is likely to taint the entire case. They are after all effectively depriving a person to their right to an attorney.
But can the evidence be used against a third party? I think so.
Ever since the Martha Stewart mess, I have read about more and more cases where it smells like the Authorities labled an innocent inconsistency ‘a lie’ and ran the poor bugger into a nice new Orange suit. It stinks.
Do I like the people around Trump? No. I don’t like the people about most politicians of any stature. Do I think the effort to ‘get’ Trump is bullshit? I consider it very, VERY likely.
In the name of ‘get the bad guys’ we have ceeded entirely too many powers to the police (and other LEOs). Asset forfeiture is bullshit. RICO is bullshit. Writing laws so that people the Authorities ‘know’ are bad can be ‘gotten’ is bullshit of a particularly festering kind.
Is Trump a “good guy”? Don’t make me laugh. Did he somehow cheat to win? Possibly, but after a year of frenzy, we don’t seem to have much. Did Hillary do as much or more that is highly questionable? Very probably. The pass she got from the FBI stinks to high heaven. If she pulled that stunt with her email innocently, she’s too dumb to have a security clearence, much less the White House.
Representative politics are a nasty, smelly, corrupt business. Just not half so corrupt as the alternatives, which mostly boil down to having some sort of Aristocracy
*spit*
So IANAL, but if law enforcement represents themselves as lawyers, and the suspect would reasonably expect their conversations to be protected by attorney-client privelege, wouldn't anything said be inadmissable?
Also, wouldn't one have to know one was speaking to law enforcement to be charged with lying to law enforcement?
A tRump and team backer?
amber says December 4, 2017 at 8:04 pm:
And, as Scott Greenfield and others have recently observed, Facebook can decide you are suicidal based solely on their computer's artificial intelligence analysis of whatever you posted. Then Facebook will call the police to "help" you.
What could possibly go wrong?
What could possibly go wrong?
The mind boggles.
One reporter is claiming that Flynn may have thought his meeting with FBI agents was a follow-up to the security protocols and procedures training he had earlier in the week with the FBI. And he didn't realize it was an official interview until after the meeting had already started.
Take that with a large grain of salt. But if your duties require you to be in contact with the FBI as part of your job (e.g. National Security Adviser) how do you not talk to them.
ppnl says December 4, 2017 at 8:59 pm:
I believe the appellate case is STATEOF TENNESSEE v. JOHN EDWARD DAWSON, No. E2009-02469-CCA-R3-CD – Filed January 13, 2011.
It appears you need to have a criminal lawyer on retainer, but that's quite a cost. So, justice for the well-to-do then. Same old, same old…
What's the difference between incorrectly remembering something and lying? Do they have to prove that you intended to deceive them?
Given that humans are prone to confabulating the past when remembering it, why are FBI agents allowed to write down what they experienced some time after the event and that be treated as more true than what any other person remembered?
"What's the difference between incorrectly remembering something and lying? Do they have to prove that you intended to deceive them?"
There seems to be a trend allowing Law Enforcement to frame incorrectly remembering something as lying. Hell, Martha Stewart was convicted and imprisoned for denying she did something that the Government never tried her for doing. I would think that the very minimum standard in such a case would be "If you won't bring her to trial for something, you can't say definitively that she lied if she denies doing it.", but apparently not.
Of course, I may be entirely wrong about the nature of that case, since I wasn't one of the people involved in trying it, nor am I a lawyer, but as I remember it being reported, that's how it fell out.
Does anybody remember differently?
"Given that humans are prone to confabulating the past when remembering it, why are FBI agents allowed to write down what they experienced some time after the event and that be treated as more true than what any other person remembered?"
Not just FBI agents. LEO's versions of events are given huge weight in court, even when video of the event, which has passed through LEO hands, has somehow turned up missing.
I'd tend to rule that in such cases there was ample reason to rule that the LEO version of events was tainted with a strong possibility of untruthfulness. But i'm neither a Lawyer nor a Judge. Nor do I want to be either. Maybe my gut reaction is off base.
Anyone with actual law experience want to enlighten me?
M A T E R I A L lies.
As Dershowitz pointed out earlier, Michael Flynn's lie may not even be considered material because talking to Sislyak wasn't a crime. (Do not say Logan Act.)
Dear En Passant, ppnl, and Kevin S.
Yes, the detective impersonating the lawyer was castigated by the appeal court not least because impersonating any licensed professional was actually illegal, being prohibited by state law: Tennessee Code Title 39 – Criminal Offenses, Chapter 16 – Offenses Against Administration of Government, Part 3 – False Personation. In short 39-16-3.02 prohibits "Impersonation of licensed professional." (Lawyer, Accountant, Doctor…)
That's a Class E felony so the detective took the fifth and consequently the victim could not establish prejudice! For this and other sins, the trial judge was knocked by the appeal court. Trial verdict was reversed, pleas were vacated and all charges dismissed outright.
Of course, state code provisions would not apply to federal charges. However! On appeal, "Sixth Amendment right to counsel had attached". Not just state but federal constitutional violations applied, so the appeal court ruled "defendant’s right to counsel under [both] state and federal constitutions" was fatally compromised.
I guess that means the FBI wouldn't get away with impersonating a lawyer, 18 USC 1001 section 47 notwithstanding.
@Xmas
Well, if you're doing normal job duties, probably continue to talk with them. When you realize you're being formally interrogated by the FBI in an ongoing investigation, halt the meeting and demand your lawyer be present?
This is why I'd love to be a judge. My first question for the prosecution in any case would be "At any time has any person involved in the arrest, questioning and charging of the defendant lied to the defendant, about *anything* relating to the charges or any other aspect of this case?"
"You told the defendant that if he confessed before his partner, he'd get lesser charges, but you're seeking the same charges against them both? Well, councilor, that LIE just lost you the case! DISMISSED! Next time I see you back here I expect TRUTH! If you cannot make your case on truth and nothing but truth, you're not pursuing justice."
It's not just about lying either. This guy explains how even if you're innocent of all legal offenses telling the exact truth and nothing but the truth can easily get you jail time.
Also, the FBI doesn't record interviews. So the agents might lie when they later claim you lied.
Two questions:
1) Can you simply refuse to talk to the Feds? Ever?
2) This sounds, to a layman's ears like entrapment. It is like being charged because of a verbal tic. I am surprise that nullification hasn't taken place.
OK, the second isn't a question. But I am curious about the nullification thing. I don't think that I'd ever vote for conviction for such a BS trick.
Keep in mind the particular source here. That reporter works for Circa, a Sinclair-owned news outlet, and also the esteemed Hannity.com. She's been one of the most prominent people pushing the Uranium One story, which I'm not going to rehearse the reasons why it's garbage, but it's garbage. She's a propagandist.
I understand and generally agree with the advice of “don't talk to the police”, but I think the addition of “ever under any circumstances without an attorney” bit is overblown.
Examples:
———–
9PM-(ish), a summer night not long ago, a knock on my door. I look out the window, there are two or three police cars and one officer at my door. I ask through the door intercom what they need.
Turns out they get a call because there's an alligator in my front yard. A small one, about 4-ft. One officer is on top of it and holding its snout shut, and they wanted to know if I had some electrical tape they could use to keep it shut so the officer could let go.
I mean, I suppose I could've said “I need to consult counsel first”, but I figured it'd be kind of silly. I gave them a roll of electrical tape.
———–
4AM, a knock on my door. Check outside, there's one officer on my porch, cruiser in my drive. He asks for me by name, along with “Do you own [motorcycle make/model/plate#]”.
OK, now I'm a bit worried. Yeah, that's my bike. It hasn't run for months, it's just been parked up around the back of the house. Worked on it a bit last night.
“We found it down the street dumped in someone's yard”. Thieves (s?) had trashed it while trying to haul it away, dropping it at least once on each side, destroying all the plastic body panels and doing who knows what other damage. I'd guess they got spooked by a car/ neighbor or whatnot, ditched it, and ran off.
Until the knock at my door, I didn't even know it had been stolen – it must have happened within the few hours before it was found or I'd likely have heard something.
Again, I suppose I could've said “I need to consult counsel first”, but then I'd be saddled with impound/storage fees, it'd be more difficult to file the police report for theft, submitting a claim with the insurance company would've been next-to-impossible without the police report, etc.
Plus, there's a pretty good chance they might have arrested ME, suspecting I'd crashed it there myself and then run off. Wouldn't THAT be fun? A whole new set of unnecessary hassles/expenses that would make the earlier stuff with the police-report and insurance-claim more difficult yet. I might, right now, still not have the damn thing back, might never gotten the check from the insurance, and could be facing a bogus charge/court battle complete with its own expenses.
———–
Absolutes like “Never, ever, under any circumstances, say a single word besides ‘am I free to go?’ and ‘lawyer’” are as inflexible as zero-tolerance policies. They don't merely “not leave room” for exercising discretion, they seem ferociously prohibitive of the very idea that any bit of sense should even be given consideration.
* "Lesley Stahl", according to Wikipedia.
(My god, what a shamefully petty comment for me to make. Sorry. Kind of.)
@Brian
At least in theory, that should get the case thrown out of court. These days, I'm not so sure it would, especially if you need a legal aid lawyer.
@Richard Smart,
What do you suppose would happen if the agent in question also happened to *be* a licensed attorney?
@Ed in Myakka,
I imagine that "are you aware of the concept of jury nullification?" is one of the questions that eliminates a lot of potential jurors…
This guy said it pretty well.
@TXDave
IANAL, of course, but they would then presumably be violating client-attorney privilege, at the very least.
@Brian
This is not legal advice (not a lawyer) but simply practical:
If you don't want to keep a lawyer on retainer that's fine. I don't have a lawyer, nor do i expect to need one because I lead a relatively boring life but I still keep the contact information for a couple in my wallet and contacts lists so I am prepared if I need to call upon one.
Just continue to refuse conversation and invoke your 5th every time they try to talk to you. Force their hand to either detain you or invoke the force of a court order. At that point you may be cornered into shelling out cash for a lawyer but there is still no reason to keep one on paid retainer.
Once they actually make it official your lawyer which you then call and hire can walk you through the intricacies of what specifically you are required to share and how to comply without putting yourself at any more risk than legally necessary.
"Not just FBI agents. LEO's versions of events are given huge weight in court, even when video of the event, which has passed through LEO hands, has somehow turned up missing."
Yes.
A person close to me was arrested for DUI, refused to blow, and then did a sobriety test on video at the station. Passed every test. The video of this test was then "lost". Judge demanded they produce it or the case would be dropped. The video was then "found".
I think generally yes, with exceptions including public safety emergencies or an order compelling you to answer specific questions (which might come with immunity, if the answers could incriminate you), which you would have to comply with or challenge in court.
Everything in this article sounds completely reasonable, and is excellent advice insofar as I am any judge.
[extremely Colombo voice] Just, ah, one more thing.
The bit about how we don't know how to talk is MOOD AF & a daily trial with my autism, and I know I'm not alone on this. I realise the subject at hand is legalities and the paradoxical confessions of people who didn't mean to lie, but that whole section just leaped off the page at me.
Y'all allistics really have no idea how imprecise you are.
People's towering impatience with someone answering the question they actually asked rather than the socially coded one they MEANT, or asking them to rephrase so their question (or their response) makes sense or isn't generalised out of usefulness, can kiss my entire hindquarters.
Part of the problem is that many autistics are constantly in a metaphorical back room, sweating bullets and trying not to fidget while the world interrogates us in an effort to nail us on a charge of Being Abnormal. Good cop or bad cop, it's still cops and neither mean you any good.
Parenthetically, allistic impatience with this constant need to audit and re-audit input from allistics themselves is the primary cause of our deaths at the hands of LEOs, who will scream internally contradictory or vague instructions at us and then interpret the delay while we try to process what they meant as "noncompliance."
Anyhow, good article and great advice. Stay specific, y'all.
That made me think of this:
Does this "lying to the FBI is a crime" law also apply to the special investigation Mueller is running? As in, does lying to them also fall under that clause or do they not count?
I don't think that anyone who knows enough about living day to day life is going to ever say 'under no circumstances communicate with law enforcement or investigators."
That's silly.
However, context is everything – and you need to understand that context from the environment. Stopped for speeding on a dark road at 1230am on a Sunday morning, 'where have you been tonight?' is a loaded question – and simply saying: "Officer, I respect you doing your job but I refuse to answer investigatory questions without an attorney present." Is perfectly acceptable.
Now – knock at the door at 4am – and its the cops asking if you own such and such vehicle or motorcycle – its stupid not to answer that question because would they be at your door if they didn't already know the answer? the problem for most people is that they forget its a yes or no question. The hardest part in my 32 years of practice has been to get people to answer the question asked. "Do you know Sally?" Is a yes or no question – and asked like that the answer should be "I'm not sure which Sally you mean?" I don't need to hear about your last 30 year history with sally. Thats NOT the question being asked.
Make the person ask the questions.
Now – moving on to written questions – yes – you can and should ask your lawyer to ask for the questions in writing. But since I am going to recommend you take the Fifth anyway – there is no point to any of it.
You are not answering questions. Period. If they're not going to tell me what they are investigating and why – and attest to me as your lawyer they are not lying to me or misleading me – then you're not answering.
I could tell you horror stories – of guys trying to be the nice guy – and helping someone out with a "My appointment book shows I met Mr. Corleone at 7p on November 21 for drinks"
But your credit card receipt shows it was November 22 after you postponed after a phone call because he couldn't make it the 21st – because he was out squeezing a witness. They come along and accuse you of misleading an investigator. Did you mislead them? Yes – the date was wrong. Now they're squeezing you and asking you to set this guy up and turn over other records you have.
If you only kept your mouth shut – their records search would reveal the date you met with him – and that's all they really needed from you in the first place.
Are you smart enough to know which felony you committed 6 months ago when you absentmindedly gave someone a Canadian nickel instead of a US nickel? Unless you are – then you have no reason talking to law enforcement about anything substantive.
I'll tell you- was at a party. And I said the above. Most 'citizens' laughed at me, called me paranoid, but the only people who agreed with me were cops.
PS: if an FBI agent tells you: "I'm a lawyer, anything you say to me is privileged" you're golden. The one thing the courts will not let government do, yet, is represent to a potential target that the investigator is a lawyer who represents the person. That's a YUGE no-no.
The lies of Trumpers and I'm not a Trumper but (proceeds to defend Trump every time) in internet comment sections has become criminally ignorant.
Oh no, there is another David, I am not affiliated with that Trumper
Amber: pet peeve but it's HIPAA not HIPPA
The "tell the truth" thing is nonsense anyway. To someone who thinks about it the whole witness oath is broken "the truth, the whole truth".. sure, no problem "in the beginning was nothing, which exploded". But when a cop says "what happened" and you start describing the weather, expect to have a bad time.
So you can't take anything literally, which means any question is a matter of interpretation and inference. It's all very Humpty Dumpty “When I use a word it means just what I choose it to mean … The question is, which is to be master — that’s all". Once law enforcement decide they want to make you hurt you will be in pain. The question is how much each side pays, and remember that they have more experience and will be treated more leniently than you will. Your lawyer is there at least partly because they're a legal professional and thus slightly respectable and because they're a witness who's not a cop. You need that.
Australia has a similar legal system in many ways, but it's better for the middle class than the US one. As an educated white guy I have less to fear here than I would if I was stupid enough to visit the USA.
I was interviewed by the FBI and I told them, "Yes, David is a dick hole as far as I can tell."
@David who asked re: the special prosecutor
While a charge of violating 18 USC 1001 is often characterized as "lying to the FBI", the statute itself is not agency-specific — it says "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States". You can get that charge pressed against you for lying to Congress if they're the ones investigating you, for instance, or for lying to really any federal investigator irrespective of the agency they're from (although some agencies would probably be extremely disgruntled at such a prosecution). It's also a reason to be very, very careful what you tell a federal judge about a case if you're not a party to it — you make a material misstatement of fact to that judge, and you've now committed a felony under 18 USC 1001. (Could you get prosecuted for an errant amicus brief, even?)
One problem with the expansive interpretation of 18 USC 1001, though, is that the statute does say "knowingly and willfully". I suspect that if SCOTUS gets to address this matter, then they may have something to say about the prosecution accidentally'ing a few words…
Once stopped at one of those anti-drunk driving chekpoints.
Cop: Where are you coming from this evening?
Me: Children's Hospital, where my infant son is in a coma. [which was 100% correct]
Cop: Um, ok, drive safely.
Many years ago, the FBI came in to investigate an incident that I was part of the response team for. Our legal department had authorized to me to share data and technical analysis with the local law enforcement group, but when the FBI was mentioned, I wasn't to talk while they were in the room. It was extremely awkward, especially when they came over to thank me for the level of detail in my notes, but they understood.
(and no, I didn't give them my notes, legal vetted them and passed them to local guys)
The other couple of times I've been on the periphery of investigations involving them have been similar. I will say that from what I've seen from them when I've present around them, they are, or at least were, very professional and polite; but take that for what it's worth, I've always been the clean up crew, brought in after things went awry.
If I can add another reason why one should be careful about talking to the authorities (I don't say "never" for some of the very good reasons given above):
You might very well have unknowingly violated the law, and talking about what you did may constitute a confession to the violation. There are a lot of criminal laws you have never heard of, many of them are broadly drafted and even more broadly interpreted by prosecutors. Something you did that seemed entirely innocent at the time might be against some law or other, and "well, hell, everyone does it that way" is not an effective defense.
@Roscoe: isn't that covered under "You don't know if you're in trouble?"
So, if I'm a working class American, barely making ends meet, and local PD comes knocking, I should call Ken White, Esq., and you will take my case pro bono?
Ken never got to the topic I expected: "You are screwed if you go at all." FBI practice was to conduct interview in a closed room with two agents and the subject. Recording devices are prohibited by policy, even though they would clear up any disputes and cost nothing. One agent writes notes which are not revealed to the subject. Afterward it's your word against two FBI agents with written records. I am not saying all FBI agents are corrupt liars, I am saying that Bureau policy facilitates that.
@RDK: If you are a working class American, barely making ends meet, our justice system is not for you.
I love this post so much, I'm reading it for the fifth time–just for the humor, although the truth in it is kinda terrifying. Thank you for cracking me up!
Roscoe, the biggest risk isn't that you will confess to some unknown crime, it's that you will provide circumstantial evidence that will make the cops pursue you as the suspect in the actual crime they are investigating. The first linked video above explains this clearly. The cops don't have a suspect and are talking to you about what you saw and in doing so you provide evidence and testimony that you were in the area at the time and didn't like the person killed. You've now jumped to the top of the suspect list and could have just got yourself convicted of a crime because the cops just want to close the case and don't care if you actually did it.
Fasolt, thanks for posting the link to your first video. That guy is the guy I think of everyone someone talks about talking to the FBI. It was a real eye opener to find about about the interview form the FBI fills out and that they will refuse to interview you under a recording because that recording would provide context to any statements you make and would likely make it impossible for them to get you on lying to them where the interview form they fill out would because it lacked the context.
Everyone thinking about talking to the FBI should watch that video, because of that video I won't talk to the FBI unless I'm recording the conversation in my lawyers office.
lol at @Trent lawsplaining to a former AUSA and federal criminal defense attorney with more experience than me
@C.P.S. Schofield
What if the thing you falsely (according to them) denied doing isn't illegal? In that case they might have incontrovertible evidence that you did it, but they can't bring you to trial for it.
@Galane
That's ridiculous. And if you did somehow make judge and tried that stunt you'd be violating your oath and would be disciplined or removed.
@Milhouse
If it's legal, then how is lying about it a material interference in an investigation?
Sure they can. If you did not actually deny it, they may not get a conviction for lying, but they can at least try. And if you did falsely deny it, then they are entitled to a conviction because you did in fact lie to them.
The material impediment element of the crime has been defined away into a formality. You could be mistaken about the weather that day, but if you say something then it is an untruthful statement which the government has defined into a victimless crime.
Because you made an untruthful statement, you are now subject to government blackmail. You can become a cooperating witness, if you like. If they do not need you now, they'll keep the interview notes in a file so that they can be pulled out when needed. Could be worse, you could have been in one of J.Edgar Hoover's special files.
I think the entire crime is bogus. Lying to the government should be considered not so much a crime as a national pastime. Possibly even a civic duty. The exception is when you are under oath, but that circumstance should be unusual enough to put you on guard and possibly even prompt you to prepare.
Otherwise, the two best plans for dealing with the FBI are (a) shut up (b) position yourself in your lawyer's "client" chair during any interactions.
@Your Lawyer:
In the presumably unlikely chance you find yourself in this situation, should you instead sing like the proverbial canary, as they can't use any of it? ;p
@Matt: Google for the term "parallel construction".
One note about Flynn –
While people focus on Flynn's singular charge, it's important to note that they can always drop any other charges on him as needed should he not play ball. Those charges include not registering his activities with the Turkish government pursuant to FARA, and not including relevant information on his SF86.
Thus, ,when we say "Everybody lies", that can also include on forms that demand that you detail numerous contacts with foreigners, when you make a living having contacts with said foreigners. Except in this case, you don't have the excuse of "The FBI was mean and tricked me", because you apparently got outwitted by a paper form.
So use the same advice. Filling out an SF86? Sit down with a lawyer to determine what to include and what to exclude. Not sure if you should report something under FARA? Pay a lawyer. Because when you read "The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to five (5) years imprisonment. " when filling out an SF86, that's the government's free hint that you are now playing with the big boys.
Which reminds me of a point that Self-Defense Attorney Andrew Braca has made about talking to the police after an act of self defense. Shutting up completely is going to be a problem, because (1) you have to admit to a potential crime — some variant of homicide — to claim self defense, and (2) you have to prove your innocence.
So, when the police arrive, you describe your assailant, point out who witnessed the event, and where the assailant dropped his weapon, and then you clam up, and demand to speak with your lawyer.
Otherwise, your lawyer is going to have a very hard time defending you, when your witnesses flew off back home to London, and the police had no idea about that knife, that was later picked up by a hobo, and so forth…
But notice also: You only talk about witnesses and evidence, and after you tell the police about witnesses and evidence, you shut up, and you request time with a lawyer.
Even if you do tell the truth and that truth is not incriminating you can still get into hot water. What if the FBI has its facts wrong to the point where they can argue that your statement of truth was actually a lie? They may have, for instance, questioned other witnesses who gave testimony contradicting your own, and then use that inconsistency to convict you.
Could one preface every statement with "it is my recollection that …."?
You are not stating facts, only what's in your memory. Good luck proving that you actually remembered something different.
Perhaps the best answer is "I do not recall". I think that someone used this phrase many times quite recently.
In regard to the two dozen tactics, how, please do they pace without getting out of their chair? ;-)
Ahem:
"You have the right to remain silent"