Take Pause, Anonymous

My previous post, The Cops Show You a Picture of Yourself raised a good question from an anonymous commenter, who wrote:
Your comment "they don't have to show me the video" makes me take pause. Aren't individuals accused of criminal behavior entitled to be confronted with the evidence? Doesn't the Sixth Amendment entitle them to see the video?


Just to clarify before we go any further, I wrote in the original post, "I'm placed under arrest and they don't have to show me the video.  They can save the video for trial..."  Meaning, there is no right to see the video during the interrogation, before my arrest.  


 Let's start by taking a look at the Sixth Amendment and the Confrontation Clause briefly:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The question is referring to the Confrontation Clause, meaning the right "to be confronted with the witnesses against him."  And I agree, absolutely, that would include the right to see the video...  at trial.  The Confrontation Clause is a trial right, not a pre-trial or investigation right.  

Ultimately, if this case went to trial, you would likely see this video at trial if the prosecution was using it as evidence against you. 



Notice the two "if"s in that sentence.  


First, if the case went to trial.  If you took a plea deal, depending on the discovery rules in your jurisdiction and the timing of the plea, it is possible you would not see the video before your plea.  Some states have very late discovery (for example, everything has to be turned over before the trial begins) and certainly, some defendants take a plea bargain well before the case proceeds that far.  I think that most defense lawyers, if the video was the key evidence in the case, would ask for an opportunity to view the video before advising their client whether to take a plea deal.  On the other hand, though, I can imagine a scenario where the prosecutor says, "Look, the deal is ____ today.  Your client knows what he did.  If I have to present the case to the grand jury and turn over evidence, the offer is going up."  And, we're back to my assertion, they don't have to show you the video.  


The second "if" is if the prosecution uses that video against you.  Sometimes the prosecution has evidence that they choose not to use, particularly if there's a way to prove the case and protect that evidence.  For example, imagine that same robbery case with the video.  Let's imagine the prosecutor finds ten different people who were on the street that day.  They all come in, pick you out of a mugshot book, pick you out of a line-up, and describe you perfectly.  One of them even got a picture of you on his cell phone camera as you ran away.  If the prosecutor decides that he feels pretty confident the jury will be convinced based on these ten witnesses and the cell phone camera photo, he may decide he doesn't want to use the video and may never have to turn it over.  


On the contrary, if the prosecutor was using the video as the evidence against you, you would have a chance to confront it.  To argue to the jury, for example, that the video may have been tampered with or that the footage doesn't show what it is alleged to have shown.  The officer can't testify, "I saw the video and it showed the defendant committing the robbery," without showing the video for the jury - and letting the jury decide for themselves whether the video really shows what the officer says it does. 


Bottom line, I agree, anonymous.  It gives me pause too.  A lot of the things that police are allowed to do, and a lot of things that prosecutors are allowed to withhold, give me pause too.  Hopefully, you and all of the other readers will feel that same hesitation just between the officer asking you a question and you asking for a lawyer. 

Preach On, Gideon

I had two goals:

First, to find some new defense blogs to link to as I clear out some apparently-abandoned blogs.

The other was to try to write a meaningful piece on the Dharun Ravi - Rutgers - cyberbullying - "hate crime" - "bias intimidation" - "Tyler Clementi" case.   But I had too many thoughts spinning around in my head, and I just wasn't ready to organize them all yet.

Instead, I found this excellent blog post When hard cases make bad law: Why the Rutgers Conviction is Wrong that says it all much better than I could.  And in the process, I've found Gideon Speaks - a new (to me) defense blog!

Two birds, one stone.

The Cops Show You a Picture of Yourself

This happens every day, so let's deal with it.

The police come to your house or a detective calls you into the police station, and they show you a photo.  It's a photo of you, but you're not doing anything bad, just walking down the street, let's say.

The police officer asks you, "Is this you?"

You should respond, "I'm not answering any questions without a lawyer present."

Yes, even though that photo doesn't show anything bad and maybe the officer says something like "We just need to clear possible suspects," or "As soon as we know if this is you, we can exclude you as a suspect."  But, you should know by now that the police are allowed to lie to a suspect during their investigation.

So, what happens if you say "Yeah, that's me," thinking that it can't possibly hurt you to admit to being the guy in the photo doing something totally innocent, like standing on the sidewalk?  Let's be clear, the police didn't ask the question for no reason.  They asked because there is some way to incriminate you with that photo.

Perhaps you're wearing the same distinctive hat they recovered from the crime scene.  Or, more likely, the photo is actually a still shot from a video that shows you leaving the scene of the crime or committing the crime.

Over and over, I tell this to my clients.  "The police says they have a video of the robbery, and they showed you a photo from it and you admitted that was you."  And over and over, my clients say "That wasn't a video of the robbery, it was just a picture of me.  There was no robbery in that picture."

But that's the point.  The police don't show you the photo of you actually committing the crime.  Then you would never admit it was you, and that would not make their job any easier.

Let's imagine, for a moment, that I killed someone.  I walked right up to a woman on the street and stabbed her in the back.  I dropped the knife and walked off.  If the detective showed me a photo of me stabbing the woman in the back and said "Is that you?"  I would say, "No, of course not!"  Because I'm at least that smart.  But if the detective showed me a photo of myself two minutes earlier, or two minutes later, when I'm just walking down the street, no knife in my hand, I might say "Yeah, that's me. Why?"

I'm placed under arrest and they don't have to show me the video.  They can save the video for trial and say "Here's the photo Ms. Justice admitted was her.  And here's where we got that photo from." Then the prosecutor could play the video that shows me stabbing the woman and walking away, and pause it at the spot that they printed and say "And is that the same scene you printed and Ms. Justice admitted was her?"  The detective would say "Yes it is."  And they have just proven my identity.

That's not to say I don't have some other defense.  Maybe there's a self-defense argument or a causation argument.  But, if I didn't have the knife on me when the police arrested me, and the police didn't find my clothes with the victim's blood on them, maybe my lawyer would have an easier time arguing, "That could be any female with blonde hair! That could even be a man in a blonde wig!" Now that argument is gone, and my lawyer better be able to come up with something else.

So, that's my advice: When the police show you a picture and say "Is that you?" do the same thing you should do when the police ask you any question.  Say, "I'm not answering any questions without a lawyer present."  And then keep your mouth shut.