There's a great shift going on regarding the perception of law enforcement. Gone are the days of Officer Friendly, when folks were disposed to talk to cops whenever and wherever they were asked. Or to come down to the station for this or that reason. Come on, we need your help, that sort of thing.
If the past dozen-plus years of a semi-unrestricted surveillance state have taught us anything, it's that people in a position of power should be treated with respect but also kept within strict boundaries.
And let's be clear: Power is changing throughout our society, with the high-and-the-mighty being leveled with us little people. Priests, professors, politicians, stockbrokers, Indian chiefs, and yes, beat cops have relatively less ability to act however they want or to enforce their diktat. That's due to a lot of different reasons, especially technological advances that spread information and the ability to speak back to power; everything from cell phones to the internet help to create the preconditions for the libertarian moment. When it comes to cops, this relative decline in the ability to act with impunity is sometime cast as a "war on police." In fact, it is simply a long-overdue conversation about police misuse of authority.
Ken White, a former federal prosecutor who blogs at Popehat and is a contributing editor to Reason, is a practicing attorney whose firm runs a lively site. In a recent entry, White implores folks to always get representation when talking to the police.
On television, cops constantly tell suspects "you have to talk now, talk first, or we'll give a deal to your buddy." On television, that proposition is presented as true. But real life isn't like television. In real life, that "now or never" proposition is almost always false. In 21 years practicing criminal law, I have never seen a circumstance where stopping the interview and talking to a lawyer would have destroyed someone's opportunity to talk to law enforcement and resulted in harm to their best interests. There's always been another chance, once the client has talked to a lawyer and taken advantage of competent advice about the situation.
White asks readers to
consider the case of Professor Xi Xiaoxing, a physicist at Temple University. The Department of Justice charged Dr. Xi with leaking sensitive technical information to China. They were wrong — the items in question were not sensitive or protected. The FBI agents and the federal prosecutors assigned to the case didn't understand the science and didn't bother to learn it, so they proceeded based on a false premise. They arrested Dr. Xi, prosecuted him, threatened to put him in jail, threatened to destroy his life based on a fundamental misunderstanding of the facts. Sometimes the government gets complex things wrong like that. Sometimes they get simple things wrong — like when they stubbornly believe an informant who is actually lying. When you talk to law enforcement under those circumstances, their false conclusions put you at peril.
consulting a lawyer before you answer law enforcement questions is like wearing a seat belt when you drive…. Don't talk to law enforcement without consulting qualified counsel first.
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