Criminal Defense Myths, Debunked

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Well, welcome back to the Now We Defend

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podcast again. I’m your host attorney, TL Kearney. I’ve got Justin with us as well. And Tim also with us in the house. I think this is the first week in a few weeks that we’ve had all three of us here. So it’s great to be back with you guys. We’ve got another fun topic today.

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We’re actually going to expound further upon different myths in criminal law that we see pretty frequently. We actually had to kind of bifurcate the last episode because we had so many. We wanted to go over that we need to keep going. I did want to comment real quick on the episode from last week when I wasn’t here. You guys killed it.

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You guys were awesome, I loved it, I loved kind of learning about the inside of how you joined this firm, some of which I didn’t know, which I thought was kind of interesting. So Justin, I were talking about that a little bit and it was really, really neat. And I think you guys are doing an excellent job, and it was really informative and I think actually probably helpful, especially to maybe folks that are in like law school right now and are thinking about taking the bar exam or maybe even thinking about going to law school.

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It was really helpful to kind of maybe a different sector of people that we don’t always reach with our podcast. So good job fellas. All right. Well, the first myth I want to go over today is we see this one a lot because of the digital world. And that is when you delete something on your phone or on your iPad or on your computer, it is not gone.

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And I think a lot of people think when they hit that delete button that it is deleted, and that means they can’t see it, which is usually true, and that no one else can see it. But what we see a lot in this whole day of, you know, now, forensic analysis that can be done, which is highly, highly extensive.

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And I’ve actually gone to some continuing legal education or CLE credits about this topic. It is amazing how deep they can dig into some of these cell phones and the things that they can recover years, sometimes ago when you’ve deleted them. And a lot of people are getting convicted of crimes based upon things that they’ve done a very long time ago, things they think they’ve deleted out of their lives and are in fact, still harbored and hidden in their phone for law enforcement to see.

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So so let’s jump into that a little bit. Tim, we’ll go over to you first here. Tell me a little bit about your experience with this. I know you’ve had some experience both as a prosecutor and the defense attorney with this type of evidence. Well, something to kind of point out to is that this what we’re saying also is not just limited to like phones and devices, but it’s also relevant, I think, to consider the internet’s involvement in this, too, because the internet is also another thing where a lot of people think that they can take stuff off of their social media posts and they think they can delete videos or things off the internet.

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But a lot of times you don’t know who has seen that already and who’s who’s recorded it, or who has screenshotted it or whatever. When you’re putting something out on the internet especially, it’s peeing a swimming pool. It’s out. It’s it’s in there now. And you you may think swimming in a swimming pool is what I always tell people, you know, and and sometimes that’s true also with your devices it can be a little bit of the same thing.

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Now there are limits on what can be recovered off a physical device because it it may or may not last as long as what’s on the internet before we get into that, Tim. Because because you mentioned the internet. That’s an excellent point you brought up there. Yeah. I mean, you are right with the analogy, as funny as it is of peeing a swimming pool, but I think when someone peas in a swimming pool and they know about it, they make everybody get out and they flush the pool, right?

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I don’t you can’t really do that. Do they ever do that? I don’t know, they say they do, but I don’t know if they ever they don’t can’t do that with the internet. Right. So Ruth. What’s that? Caddyshack. Oh. Oh, yeah. With the Baby Ruth. I think that’s that’s not pee, though. That’s that’s a little different. Anyway.

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Yeah. I mean, when you’re dealing with that type of thing on, you know, the internet and we see this actually in the news media, I think, with celebrities who get in trouble for things they’ve said in the past, and they try to scrub their social media and it’s damn near impossible to do like it really is. I mean, people are getting in trouble with the, you know, that not me movement or what is that?

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The whole me too, me too movement with people who have said things in the past. Celebrities that are, you know, is viewed as sexual. The cancel culture stuff. Yeah, a lot of that is that they’re able to bring back years and years later. Yeah. And that’s a luxury that I think like previous generations had, because they didn’t have every ill advised statement or drunken text or something that was just available to be plastered.

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Luckily, we were young at a time when that wasn’t available, thank goodness. I’m sure that that I’ve said some stupid things on the internet, or I’ve made like a dark joke or something that that would, you know, people would be like, oh, you know, that’s terrible or whatever. And everybody has even like think about like when your very first cell phone that you had.

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Right, it was either a little block or a flip phone or something like that, and you would have to pay per text message that you sent. Remember that the go phone gotten a lot of trouble for that. Would you run up a text bill? Yeah, I was in seventh grade and just gone. Well, I had a I think I had a cell phone.

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My mom got me one that was like one of those Nokia’s just to like, call her. My parents were divorced, so those things were great. Yeah, but. Oh, is that the the the walkie talkie ones? No, that was a Nextel. Okay. But no, the Nokia just like the the block phone where you play snake on it like the stereotypical, you know, late 90s.

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Still like the best cell phones out of it. But I remember I got a Motorola Razr that very thin one. That was the those were cool at the time. Yeah, they were really broke. It was like right before texting got big. It was just starting. I was in seventh grade and I remember texting like the girl I had a crush on in seventh grade, like a bunch.

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And I remember my mom coming to me, you know, a couple weeks later, like, how much have you been texting? And I was like, I don’t know, like a lot like it’s $0.10 per message. I think the bill was like $1,000. She was nice. Fist. Yeah, yeah. And I mean, and just thinking about that. Right. Some of the things you might have been sending to this girl maybe wouldn’t have been appropriate.

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Right? I mean, depending on, you know, I think I was hormone, hormone ridden Justin down in seventh grade, I don’t know, I like you’re cute. I really like you. I like you, like you. I’m sure it was really PC Justin bit in the game, but in any event, that type of thing is what gets kids in high school in trouble now.

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Yeah, it was a big sexting scandal in high school. That was about 30 40 minutes from me where like where I grew up when I was in ninth or 10th grade, like it was like national news. And again, that’s right. When texting is just getting big. And I think they started moving to like the unlimited texting thing, which now to think about is like, that’s all I do.

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I barely talk on the phone except for work, right? Or to like my mom and dad, but everyone else, it’s a text message. And I do think kids probably nowadays, just as it’s been since that started coming around. And I know you’ve talked about this before with your kids, like it’s so easy to get yourself in trouble just by sending a message.

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Yeah, yeah. I mean, now that I have kids that have are of an age where it’s appropriate for them to have a cell phone. I mean, Tim, you’re not quite there yet with all your kids, I don’t think. I mean, they’re not going to have cell phones for, like, ever. Okay. Fair enough. You say that now. It’s something I used to say to, but, I mean, like, I think they’ll have like like what I had for years where, you know, Escobar phone.

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Yeah. Just like a flip phone. And, you know, they can’t get on the internet or whatever. They. By the way, that’s pretty dang hard to find nowadays. Yeah. I mean, like our service plan, our service provider does still offer it. And they have, like, lots of flip phones, but so like they’re out there, but it is increasingly rare.

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I mean, I was pretty much the entire time I was a prosecutor, I had a flip phone. It was crazy. He would like I remember being at Holy Hand at Happy Hour, and he’s like typing out a text to like one of his buddies. And it was T9 man, I was it was it took him like 20 minutes.

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We did it went over there. No it did. There’s a South Park episode. It’s funny because they, they, they, they’re making a joke about like, the cloud and about how, like, you know, you can, you know, you can be absolved of all your, you know, you’re wrongdoings. And it almost takes the form of, like a religion where they’re, they’re making a joke, like, you think your deeds are forgotten, but they go to the cloud.

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They live on forever in the cloud. Everyone lives forever in the cloud. And that’s I wonder what we’re talking about. If we could get a clip of that on. I don’t know if it’s on. If that clip is on. Levi, throw it in. Yeah. Levi, if you can find that clip, it’s always fun to

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watch South Park. Yeah, it’s like with them at the the DMV or whatever.

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But that’s the point that we’re making is that the stuff does live on. You know, once it leaves your device and it goes into the network or it goes to somebody else’s device or it goes on to the internet, it lives on. Yeah. It’s a never ending web. It’s gone. I mean, yeah, but I want to before we move into, I want to tell you guys a funny story about cell phones.

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When I was in the DA’s office. This would have been back in like two from 2009 to 2012 ish, when I was a prosecutor. And we actually did have I think you said it was a Nextel walkie talkie that we had those construction phones. Yeah, like that’s what they got for us. And we would all be up in court like, yeah, you know, make and and walkie talkie each other.

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It was actually kind of interesting. It worked to an extent, but it was also weird because I felt like I was on a construction site and the phone was like yellow and black, like it was weird. It had that, like, heavy duty, like rubbery plastic. Yeah, yeah. Like you could drop it. You could chuck it against the wall and it would bounce off.

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Yeah. Anyway. Okay. But back to your point, Tim. I mean, well taken. I mean, you’re right, like it’s not only what’s actually on your phone. I mean, this expounds into wherever you sent it. There’s a record of it there too. And I see a lot in child pornography cases where this actually is the the nailing in the coffin.

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Right. This is the issue where the guy goes, oh, I deleted it, I scrubbed it, I ran programs. It’s never going to be on my phone. Well okay. Did you send it anywhere. It’s on that. He’s going to say, well not only that but the IP address. Yeah. Like they that’s how most of these things are coming because you know Verizon Comcast AT&T they’re getting a hit for Csam child sexual abuse material through an IP address.

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And then they’re linking that to, you know a person’s home. Yeah you’re absolutely right. I mean and it’s important that people understand this. And again I mean this is sometimes a tough topic to talk about because it’s a part of society that I think a lot of people don’t like to look at, but it is one that does affect people.

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And sometimes good people are just have a perversion of some sort. Right. So and we defend a lot of folks that deal with child pornography cases. And it is very, very important just in what you just said for everybody out there and this like what you do privately in your home with your hood up at your computer is not private.

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It is absolutely not private. And the way that law enforcement is getting to these individuals, I’ll break it down for you pretty easily. As Justin indicated, there is something that is known. There is a lot of images out there that are is known child sexual abuse material, meaning police have already flagged it, law enforcement has already flagged it.

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And there’s thousands, millions, probably of these already flagged known images. And the moment one of those images changes hands and goes somewhere, whether you’re using Snapchat or one of these peer to peer sharing networks like discord and things like that, it gets flagged to the companies and they’re they’re sharing that information very easily with law enforcement, or law enforcement is flagging it on their own, and all it really takes from there is then they go, okay, what’s the IP address that was associated with this?

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What was used? Okay, let’s get a search warrant. Let’s figure out where that IP address is associated with. What account, what name, what physical address location. And then let’s get a warrant for that house. And then they come in and they take your devices and boom, it’s on the device. And they are forensically analyzing those devices. So they’ll be able to pull that stuff pretty easily.

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And I think that the reason I think it’s worth expanding on the reason why that database, as you called it, exists. Right? Because it’s one of the elements of the offense for child pornography, whether it’s production, distribution or possession, is that the image has to be a sexually explicit like child child in the image. Right. Adults who poses children, you know, to explore some weird kink in some, you know, pornographic production that’s protected by the First Amendment.

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But children are not protected that kind of image. So they have to prove that the image is in fact an image of a child. So when they go through these cases and they they verify that this is that legit child pornography, they are keeping track on that. And like you’ve said, a lot of these images are being circulated multiple times.

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They’re being recycled unless you’re dealing with someone who is producing the material, which is why those penalties tend to be a lot higher because it’s brand new material. The other thing that they’re looking at, because you didn’t mention it, obviously, discord and, you know, zoom chats and a lot of those, we saw a lot of those being very common places for this stuff to be exchanged, but they also exchange a lot of them on torrents, on torrent websites.

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Torrent. Yeah. And and what they can do is they can track the cedars and the letters for the, the torrent itself. So you may have have leached it which is the downloading of it, but your device that’s downloading it is sharing information with the other leech, with the other seeders, the people who are putting the material out. And if you leave it in the torrent client and you see the the material out, you’re continuing to put your digital signature out onto the internet.

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And we’re not saying this because we want to help people get away with it. The best thing you could do is avoid it altogether. Yeah, that’s the point. And there really isn’t a way to get away with it. I think what what we’re doing here is just informing the general public that this is what they’re looking at. Yeah, and it’s not private.

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Right. And just to be aware, like just because you’re in your living room and no one else is in the room does not mean that this is private material, that nobody law enforcement, can’t stare directly at what you’re doing. Right? And these types of cases are very, very serious and they carry extremely serious penalties. I know we defend this here both federally and on the state side, and we’re talking many times about decades in prison.

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I mean, for this type of to and frankly, in a way that’s how it should be. I mean, this is pretty serious stuff. I mean, the the individuals that are victimized in these things, the children. Right, they or victimized over and over and over again and many times, most times, these individuals that are watching these images or downloading these images, they don’t know who these people are.

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Right? Right. But they are propagating the problem, right, by continuing to consume the material. And and that creates a demand whereby more of the material is reduced and more children will be victimized. And that’s why a lot of prosecutors and law enforcement will go, they’ll turn over all these stones because they know that it is kind of a hydra.

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And the more you know, the more that they uproot it. If it’s still being consumed, another plant takes its place. Another head will creep up because. And it’ll just propagate forever and ever and ever. And unfortunately, that is a byproduct of the way the internet is. Exactly. I mean, I have a case right now that they’re actually my guy does not know any of the individuals in these photographs, but they are identified people, their actual people that law enforcement knows and have been identified as the victim in this image or that image, and they are considered individual victims in the case who are actually able to get things like restitution, financially able to make victim

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impact statements like things like that. So, I mean, this is a really pervasive problem, but the whole point of what we’re talking about here is really just to get the word out and just let people know that. Conduct yourself accordingly online. Be careful because it is not private what you do. Now, again, we understand that legal pornography is legal pornography.

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And, you know, if they’re over the age of 18. But most of the time, if you’re doing something outside of just the regular internet, it’s going to be illegal because you have to take that extra step to get to it. And internet service providers are tracking your, your, you know, the sites that you’re on. And I’ve dealt with cases where we’ve gone into the web of like the VPNs and stuff like that.

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And even in those cases, there’s a lot that they can do that closes that gap. And I had a case that was a really, really substantial like cyber harassment case, and the individual who was doing it was very sophisticated. And, you know, like this was like auto dealers were coming out of like a server in Belarus to spam phone calls at people and using a VPN and whatever.

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And and while they can’t necessarily cross the divide between the VPN and you, you know, from start to finish, they can trace your internet activity all the way up to the VPN, and then they can potentially trace it on the back end to for where it goes after it passes through the VPN. And what I would describe to people is that the gap for the VPN, this is kind of where the defense and where the prosecution centered their fight is the the gap on closing that distance between the VPN and all the activity is simultaneously a mere crack in the sidewalk.

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But also it’s it’s a canyon. So at the same time, because you’ve got this, this VPN, which is deliberately obscuring the activity and where it’s coming from and where it’s going. And so you can’t follow it from start to finish, it’s going to be a question of whether the jury will connect to the Dot based on everything that can be gathered on both ends, and they have access to that.

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They are still prosecuting those cases. Absolutely. And and a lot of times they are many times getting convictions as well. I mean, it’s not it’s not an unclosed gap. Absolutely for them. And they do still pursue that because it’s in the interest of what they’re trying to do, which is justice, right? You know, and get justice for victims and things like that.

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So yeah, I’d like to I want I wonder what you guys think about this analogy. I think of this whole like deleting stuff off your cell phone, kind of like if you think of a physical library, right, that you go into and, you know, the Dewey Decimal System, right? Right. We all know that. Well, if you’re anywhere near our age, you would.

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Maybe not if you’re a young kid, but where you have to go through the catalog and look it up and everything, and you find the where the book is on the specific shelf, and you go to the shelf and you find it and you pull it out. So when you delete something off your phone, it’s kind of like a library, right?

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You’re not you might, you know, take it out of the Dewey Decimal System, but the book is still sitting on the shelf. Right. And unless you unless you physically move it from the shelf, right, even if you moved it to, like, a back room at the library, they’re not burning the book, right? They’re not they’re not deleting the book.

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It’s just it’s still there, maybe just in a different area. And that’s how law enforcement is able to get to it. And I think that’s a pretty reasonable way to look at it. Yeah, I just think the safe, safest thing to say or the broadest thing to say is like whatever you have on your phone, whether you think it’s gone or not, it’s it’s probably out there somewhere.

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Yeah, yeah. You just have to assume it. And what we were saying before the show today, I was mentioning to one of the things that I learned, which is that even like if you deleted an image or a text or something like that off your phone, your phone saves this information. Just to your point in a lot of different ways.

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And one of the simple ways that your phone saves some of this information is when you go into an app and you’re on the app, and then you close out of the app and you open a new app or whatever, if that, that app a lot of times is still running in the background, or your phone is pausing that app, but it leaves it kind of where you left off so that you can get into it without a long loading time.

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It’s instantly available for you to jump back in when your phone does that. Your phone is taking a screen grab of whatever it is that you were doing. And so we’ve had cases where we’ve seen examples where maybe the thing was deleted, but because your phone kind of bookmarked it in the event that you wanted to come back to that app, they’re able to access that screenshot of and you could do it when you press the menu button or whatever, and it shows all of the screens on your phone, and you can scroll through them and go back to a certain app.

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That’s what we’re talking about. That’s a screenshot that preserves content as well. You may not think about it, but it does. Yeah. And then there’s also, you know, we can have a whole discussion about cookies, right? Right. Not milk and cookies, but, you know, cookies in the sense that like I always wonder why the way why are they called cookies?

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I don’t even know what that is, to be honest. I mean, I know what it is on the internet, on the see it every once when I. But I have no idea because, you know, when you go to a website and they’re like, you want to accept the cookies? I’m always like, no, like I don’t, but I don’t know exactly what that is.

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But either way, the general understanding I have of cookies is that it does save information to your device. So then in the future, the the kind of the pathway to get to if you’re going to repeat that and go back to the same place is quicker because it’s already saved onto your phone. And I think sometimes law enforcement is looking at that stuff too.

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Yeah, right. Because they’re looking at your prior conduct or your prior engagement with the web or the internet or whatever website you were on. Right. And then, of course, there’s the dark web, and we could get into a discussion about that. I have have a lot of cases where people access the dark web. And I think the, the takeaway there, guys, if you are accessing the dark web, you are not doing it for a good reason.

00:21:34:23 – 00:21:59:13

There is no good reason to access the dark web. So the advised you very well could be getting yourself in a lot of trouble. And the police and law enforcement do regularly. I know federally especially monitors the dark web. Now you’re drawing attention on the dark web. Yeah, yeah. When you do it, you’re you’re drawing attention. Yeah. And again, gets back to the whole IP thing like very easy to track that even if you’re putting VPNs in place and things like that.

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Okay. There was one other thing I kind of wanted to mention here. And this actually bleeds into the next myth a little bit. But I think this day and age, we all have password protected cell phones, right? I think it can be anywhere from 4 to 6 characters, maybe even longer. Sometimes you can drag a little pattern to unlock your phone, things like that.

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And many times when police are seizing cell phones, they’re asking, you know, the defendant, can I have the password to your phone? And I think it’s important to note that might be the one last good protection or the one door that you have still locked that sometimes I’ve had where they actually cannot get past that, because I don’t think companies like Apple and Samsung are just even with warrants, able to even always access that because it’s specific to the phone.

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And it’s not like I don’t think it’s necessarily stored in their database somewhere. Right. Because it’s something you can change on the regular. So that can be sometimes hard for them to break through. So just as a general, you know, we talk about talking to the police, giving information to the police. You know, under questioning you do not have to give your password to the police on your cell phone, even when they ask you, even when they ask you politely.

00:23:08:25 – 00:23:24:23

And you probably shouldn’t. Now there are times where it might make sense to do it, but I would definitely suggest before you do any of that, you talk to a lawyer, because that can sometimes play into the negotiation of your case as well, and whether or not it would even make sense to do it to begin with. So just kind of keep that in mind.

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And that kind of leads me into the next myth, guys, which is that I think people think that when the police ask them a question, they need to respond to that question just because it’s a police officer asking them. And there’s a lot of good people out there in society, they’re normally functioning and they want to do the right thing.

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And they think by responding to police that they are doing the right thing and they’re being reasonable and socially appropriate and things like that. But again, you do not have to respond to questions by the police beyond what we’ve discussed in previous podcasts. Justin, do you want to maybe jump into that a little bit? I know this is a topic we’ve talked about before.

00:24:02:08 – 00:24:22:29

Yeah, I mean, I know we’ve said it probably 25, 30, maybe 50 times on previous episodes, but yeah, I mean, just because someone asks you questions doesn’t mean you need to respond. I think the biggest thing to remember is, again, like we’ve talked about in previous episodes, you know, be polite, be courteous, don’t be a jerk about it.

00:24:23:01 – 00:24:52:21

Just, you know, if they ask something, where are you coming from? Or what did you do today or where are you going? You know, I don’t answer questions. It’s very it’s very simple. Yeah. Don’t be a jerk. I think that’s also a huge part of it because like we talked about again, previous episodes, the more cordial you are with police and just, you know, polite and even though you’re not answering their questions with which may frustrate them, you’re doing it in a way that isn’t making the interaction.

00:24:52:23 – 00:25:16:25

Isn’t escalating the interaction. You’re doing it in a way that’s not making the interaction comfortable, which I think is where people get uncomfortable and screw up. Right? Yeah. So it’s important. I mean, think about your daily lives, right? Like when you’re out there living right, you’re going through probably thousands of social interactions every day with people, and you’re trying to be polite.

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You’re trying to be nice. You’re trying to get information, to give information. You’re trying to engage with the world. Right? That’s what we as humans are built to do. And I think the human brain hates silence and it hates rejection. I mean, think about if you’re in a situation, somebody asks you a question, you don’t sit there and stare at them like an awkward, you know, you know, statue, right?

00:25:38:09 – 00:26:08:01

Yeah. So I mean, again, human the human brain actually despises silence and rejection. And it’s important to understand that in social interactions, that makes sense. Yeah, but police interactions are not normal social interactions. And that’s the distinction we have to draw here. Yeah. That’s that’s basically what I was going to say. Yeah. It’s just well I think it was when just you and I was I can’t remember if it was the last time, I don’t know, whatever we were talking about with, you know, police, I think it was when we were talking about to police have to tell you.

00:26:08:01 – 00:26:31:05

Their police. Oh, yeah. You know what I mean? Like like they’re really are certain types of interactions in society that are not everyday interactions. You know, police some I would say, like medical appointments or events where something, you know, could be going terribly wrong and you hear silence. It’s like, am I sick? And you don’t hear anything. You’re gonna freak out a little bit.

00:26:31:07 – 00:26:47:17

Normally, though, you cannot use social norms when dealing with the police. You just can’t. You have to divorce the two. Yeah. By the way, you brought up the whole. The police have to tell you their police. If you ask them, I’m going to give a shout out to our producer Levi here, who’s actually with us today helping us.

00:26:47:17 – 00:27:06:11

But he put a really sweet video in one of the bad Breaking Bad. I was wondering, I couldn’t remember what movie that was. From where? The guy sitting on the park bench. Yeah. And he’s like, dude, it’s in. It’s in the US Constitution that they have to say it if they are cops and the other guys like really the US Constitution, I just thought it was kind of comical and it really drove the point home.

00:27:06:11 – 00:27:24:03

It was a good point, but I don’t want to jump off topic too much there. But I want I want to use an example here that I want everybody to kind of think about. Okay, so let’s imagine you’re married, okay. You go home at the end of the day and your wife or your husband says, hey, where’d you go today?

00:27:24:03 – 00:27:44:20

How was your day? What did you do? And your response to that was, I don’t answer questions. Could you imagine the world of crap you would be in with your spouse, and the level of suspicion you would raise if you if you said that? But that’s kind of how you have to react to the police if you’re in those situations, which is why that’s totally different from normal social norms.

00:27:44:22 – 00:28:04:04

I couldn’t imagine saying that to my wife. I would probably be in doghouse for like a week if that happened. I bet you guys would probably be the same. But again, you need to think about those types of things when you’re dealing with the police. Tim, do you want to add anything to this discussion at all? Yeah, I mean, I I’m still not sold on like the verbiage, you know, that you should use.

00:28:04:05 – 00:28:27:27

You know, I don’t answer any questions. It still sounds pointed. It still sounds and can be perceived as hostility. And so, you know, the balance that you’re trying to strike in politely declining questions is you want it to be succinct, because if you get into a long diatribe about not answering questions or why you don’t answer questions, you could you could be giving clues of guilt, clues of impairment.

00:28:27:28 – 00:28:45:23

The longer you talk, the odds are greater that your speech slurring is going to be perceived or whatever, right? So you want it to be short, but you also do not want it to be hostile or pointed or abrasive, because that can also be perceived as evidence of some kind of criminal wrongdoing, and it can be used against you.

00:28:45:25 – 00:29:11:10

So it’s it’s important, whatever verbiage you use, whether you say something like, I don’t answer any questions, I’d respectfully declined to answer your question or I’m not going to answer that. It’s important that it should. It should be short because you don’t want to be giving clues in your speech or your demeanor that are evidence of guilt, but also it should not be something that is hostile or pointed, because that can be perceived as confrontational and evidence of guilt.

00:29:11:10 – 00:29:32:15

It will be used against you. So you gotta you gotta balance. Yeah. Kind of the way you say it. Yeah, matters here because you are right. Like when being explained to a jury in a trial, I mean, fast forwarding now right from the vehicle stop itself like, yeah, I mean, you’re right. Like, I think that could come in as like, yeah, he just like yelling at me.

00:29:32:15 – 00:29:45:28

I don’t answer questions. I don’t. And they could play the video and hostile like, what’s this guy on that. He’s, he’s flying off the handle hiding. And if they play the video which they probably have and body cam and that’s what you’re saying and you’re saying in a certain type of way, I think a jury could look at that, right?

00:29:45:29 – 00:30:07:16

And say, what the hell is going on there? What is this guy hiding? Clearly something. There’s a YouTube video of a very early, like, body cam of a guy who was in a DUI stop. And if you YouTube or Google Mr. Turner DUI, you’ll see this video. At one point in the video, he says, I refuse to answer any questions under the grounds that it might incriminate myself.

00:30:07:16 – 00:30:28:14

But he says that over and over and over again, and that’s such a long, verbose statement that he is clearly slurring his speech. And by the third time he says it, he’s like, I refuse to answer any questions under the grounds that they may and or incriminate in myself. And he’s like, all jumbled. You know, that’s obviously evidence of impairment.

00:30:28:14 – 00:30:43:13

So you don’t have to answer the question because you are giving evidence against yourself. At that point, you didn’t answer the question. Let’s just do this exercise. Let’s roll. Play this for sure, okay. All right, Tim, on the cop, you’re the guy on the side of the road. All right, license and registration. Obviously, I got to give it to it.

00:30:43:13 – 00:31:00:07

To me. Yep. You hand it over. Do you know why I pulled you over? I don’t know, that’s actually exactly correct. That’s how you should answer that question. Because the moment you say, yeah, sorry, I was going a little bit fast, you were literally offering evidence against yourself. Yeah. It’s like the liar liar thing where he’s like, I, you know, all these things, all these traffic.

00:31:00:08 – 00:31:18:23

And I was speeding. Yeah. Oh, I love that. I love that clip. By the way, if you can get that in Levi, that’s a fun clip to watch. Yeah. Because and always got all the parking tickets right. Okay. Okay. Let’s keep going with, with this here. So, you know, I pulled you over, you said, I don’t know.

00:31:18:26 – 00:31:21:19

Okay.

00:31:21:21 – 00:31:46:01

Can you tell me where you were coming from? I’d like to not answer that. Okay. What have you been up to today? I’d like to not answer that. Where are you going? I mean, you could say home or something like that, right? You could. Yeah, it’s a short answer. Any answers? Your question. Right. And I think what you’re doing that you’re doing it pretty well because you’re you’re being polite.

00:31:46:01 – 00:32:09:16

You’re also the way you’re holding your body language. You’re you’re being, you know, respectful of the authority. But you’re and you’re not being abrasive to the authority. Right. I actually was talking to a guy on the phone today who was extremely abrasive. He was we call a sovereign citizen against society. Right? Like the society can’t govern me that kind of garbage.

00:32:09:19 – 00:32:26:10

And it was it was so abrasive on the phone with me. And by the way, this guy called me. I didn’t call him like he called me want to talk about his case? And he’s being so abrasive on the phone that I could tell this was the case I’m absolutely not going to take because of the way he was acting towards.

00:32:26:11 – 00:32:47:09

And, you know, the case itself, and I knew the way he was acting towards the cop on scene was probably ten times that. Right. But I think, again, it comes down to how you say it, you were doing it. Well. They’re your body language. We always got to be aware of our body language. I’m trying to keep it short, you know, like I want to keep it because you know how it is when you when you send a text to somebody and they just give you a one word reply.

00:32:47:13 – 00:33:03:25

Yeah. You’re like, your mind starts racing because you’re like, well, why are you being short with me? But you also are like, well, like there’s nothing really for me to go on here, right? You know, and that’s part of what frustrates us is it’s like, I can’t really do anything with this answer. Like, there’s not really a conversation happening here.

00:33:03:27 – 00:33:20:08

So your point, I’m not having a social interaction with you. I’m going to try and give you one word answers or four word answers or whatever. And I got to tell you, when I was asking those questions, I felt a little uncomfortable because you weren’t it was not a normal social interaction. Right? It was weird. But that is kind of what you need to understand when you’re dealing with the police.

00:33:20:08 – 00:33:41:02

And it’s okay to do that in a respectful way. That’s the point here. Okay, so I don’t know, Justin, you want to you want to play role play or do you have anything you want to add to that at all? Not really. I mean, I think Tim did a good job of that. Yeah. And doing it in that way is probably the best way to go about it.

00:33:41:02 – 00:34:06:02

Like you said, short and succinct answers. Watch your body language. Your tone of voice, I think is important. You know, like you said, you don’t want to be yelling and screaming, causing a ruckus. Like you don’t want to try and act like you’re a legal scholar either. Like you don’t want to be the person that’s using huge words, misusing words because that like, again, I mean, that could be evidence of that could be evidence of impairment at home, like you do not want to be even if you are a lawyer, don’t act like a lawyer.

00:34:06:04 – 00:34:21:01

I mean, other than to know what you’re doing. But don’t act like, oh, I’m a high falutin lawyer and I’m going to outsmart this cop. Don’t be that guy. Because, I mean, the longer you talk, the more your odds are of making a mistake. The more syllables that come out of your mouth, the more syllables you could slur.

00:34:21:02 – 00:34:38:19

Exactly. I mean, like like, I think that’s the part of it that a lot of times is lost in translation when people say like, this is what you should say to police. And they’re and they’re not counting on the fact that we’re giving this advice to somebody who maybe is impaired. Right. So I’m expecting an impaired person to to stammer out.

00:34:38:21 – 00:34:54:10

I respectfully declined to answer any questions. I’m going to invoke my rights under the Fifth Amendment or whatever, you know, you know, the Fauci thing or whatever. Like you’re if you’re drunk, you’re not going to say that, you know, and it’s not going to come out. Right. Yeah. You’re not to say it. Well, if you are saying it.

00:34:54:13 – 00:35:12:08

Yeah. And I think the other thing here is, you know, sometimes people get into situations where the police ask them to step out of the vehicle. Right. There is an important thing that you can and should say here when you are asked to step out of your vehicle. And what it is, is, is that a request or an order?

00:35:12:10 – 00:35:29:13

It’s okay to ask that. And if it’s a request, you don’t have to step out. If it is in order, you need to step out even if it’s incorrectly given. That’s something we fight later in court, and the officers a lot of times will phrase it like a request, right? Or they’ll say like, would you mind coming out here and standing by my vehicle and talking to you?

00:35:29:14 – 00:35:58:02

So you need to clarify, right? Right. Well, or you could just simply say, no, thank you. Now at that point, they’re going to say probably, well, let me rephrase. Get out of the car and come and talk to me. And at that point, you know, it’s an order. But I do think it’s important to clarify if it is a request or an order, because, again, as defense attorneys, depending on what it is or how it’s told to the individual, we can use that later as somewhere where maybe the police officer made a mistake, right?

00:35:58:03 – 00:36:21:22

Maybe they did something that crossed the boundary of what they were supposed to were allowed to do in that huge part of Fourth Amendment issues is when exactly did the seizure occur? When exactly was the seizure and when should the interaction have ended? At what point are they now extending beyond? And those those that timeline matters, right. But again, the moment it becomes an order or he says it’s it’s a seizure, you need to get out of the car.

00:36:21:23 – 00:36:41:27

I mean, essentially at that point, you’re not fighting there anymore at that point, okay, you can do it under duress, but you’re getting out of the vehicle. At that point, you should at least, okay. Anyone else want to add anything else to that myth? I think that’s nailed it. Okay. All right. Stand by. Yeah. And and here’s kind of another part of this myth, but I think it’s a little different.

00:36:41:27 – 00:37:01:04

So I want to have a little discussion on it, and that is that if I’m innocent, I should just tell that to the police. And I should explain that I’m innocent and why, and maybe they’ll just leave and leave me alone and understand that I didn’t do anything wrong. Right. Well, unfortunately, that’s a problem because again, just what we were just saying, right.

00:37:01:05 – 00:37:23:21

It gets into situations where you’re now starting to talk about things, you’re giving information about it. You might be potentially incriminating yourself unknowingly. I mean, what do you think about that? Justin. Yeah. So I think the biggest thing with this one is, is whether you’re innocent or not. I mean, even if you are 100% innocent of whatever they’re claiming you did or what happened, as soon as you start to talk.

00:37:23:22 – 00:37:43:25

And this is kind of going back to that self-defense episode that we did where I think I said, you know, even if you do everything right, from your perspective, is everyone else going to see it that way? Because, you know, two people experience we’re all sitting here experiencing the same thing. We could all have different views or a different opinion of what’s currently happening.

00:37:44:02 – 00:38:06:10

So even if you think you’re innocent, if you start going and spilling your spilling your guts and just talking essentially out your ass, you very easily can say something in the wrong way or in the wrong tone of voice where the person hearing it, meaning the officer, detective, etc. interprets that a completely different way. And then what is what happens?

00:38:06:10 – 00:38:31:28

They use it against you and they flip it against you. I mean, we’ve we’ve seen it on both sides. You know, there are certain statements that we see in cases where if you’re the prosecutor like this is wonderful and same on defense, you know, this is wonderful. But again, depending on what side you’re on and how you look at it, two or excuse me, one statement can be viewed by, you know, two people, three people in a completely different way.

00:38:32:03 – 00:39:00:11

So just because you think you’re innocent or you know you’re innocent by going out there and just saying a bunch of stuff again, whatever you say can and will be used against you. Amen. So, you know, like just stay quiet. Well, and I’ll play devil’s advocate here too. And that is that. I mean, there are many times I’ve had many cases where the person we maintained was innocent and it was in that person’s interest to to give their side or to talk to the police.

00:39:00:19 – 00:39:22:05

So what did they talk to you first as the attorney? Sometimes you did that, sometimes no. Right. I would make a distinction there because I had a case where it was down in Franklin County. It was one of the first ones I had being here at the firm where a guy was being accused of of a rape, and I spoke with him and basically called me as soon as the officer had spoken to him.

00:39:22:05 – 00:39:44:08

And he was like, I want a lawyer. So the officer was like, okay, if you get one, have him contact me. And I listened to this guy’s story. He provided me some other evidence, text messages, Facebook messages and some other things where I spoke with him and he did not want to speak to the officer at all. And I told him I was like, if you don’t go in and and talk to him and we show him these things, he’s going to charge you, right?

00:39:44:08 – 00:40:07:16

But if we go in and you tell him what you told me and we show him this again, I can’t 100% guarantee anything, but I’d say there’s a 99% chance that he doesn’t charge you, because I think this completely contradicts everything that this this person alleged against you. And they they ended up not charging him. But again, I mean, you and Tim’s point in that scenario, he did reach out to a lawyer first and made that educated decision in.

00:40:07:19 – 00:40:34:04

Well, and I had a case very similar to that, again, a guy who was accused of rape. And by the time I got involved with the case, he had already given at least one interview to police. And so, I mean, I helped get that charge, those charges dismissed. But he had already made a statement. So, you know, there are times I think, where, you know, there is power in knowing truly that you are innocent and relaying that information to officers.

00:40:34:04 – 00:40:52:16

But but the thing that you have to be most guarded with is you got to be consistent. So if you go and you give a statement, even if you’re telling what you believe is the truth, and you later come back and remember that there are certain facts, maybe that you could clarify or that there may be a little different.

00:40:52:16 – 00:41:20:11

You’ve now created a situation where you are changing your story a little bit, and that can be used against you. That’s when you start looking guilty. Even if you are innocent, is when you’re giving inaccurate information or you’re giving information that you later change. And so in that sense, it is beneficial to talk to an attorney because we can tell you, like, hey, you know, I don’t know that I would volunteer that piece of information because that doesn’t help you or, you know, we can get the story straight.

00:41:20:11 – 00:41:35:25

This is what you’re saying. We need to be consistent on these points. This is the narrative that we need to stick with. If there’s anything that you want to change about this, let’s change it. Now, before we go in and put this on record and go talk to the police. But the end of the day, the truth saves you.

00:41:35:25 – 00:42:07:17

If your true, that’s exactly right. If you’re making statements to the police, I tell my clients this all the time. We’re either a not going to make a statement, B we’re going to make a statement, but we’re going to be entirely forthcoming and truthful and thorough. Right. And then there isn’t an option C because option C is you go in there and you shade it and you go in there and you make up a story, or you don’t say certain things or you do say certain things, and that is where the human brain is not going to be accurate 100% of the time to be okay because you’re innocent through details.

00:42:07:17 – 00:42:30:17

But I think your point is really and that’s why I was kind of playing devil’s advocate, is that is that the truth will save you. If you’re innocent, it will save you. Now Justin’s right. I mean, I’ve had a lot of cases where as a prosecutor, as a defense attorney, I’m looking at this interview that was done. And I’m and I believe the person and even I’m looking at them going, but you know how this looks though, right?

00:42:30:20 – 00:42:48:11

And they know it too. And I think it’s not unreasonable to say that we might all find ourselves one day in a situation where we truly are innocent. But there’s a weird collection of facts out there, and it kind of doesn’t paint a very good picture. Or maybe we’re innocent, but we still did some things we shouldn’t have done.

00:42:48:15 – 00:43:07:13

Maybe it’s not criminal, but we just look like a bad person. We were lying to people along the way. We were maybe taking advantage of people along the way. And when you tell the truth about that, you know your motives come into question, your intentions come into question, all of that, and it can be used against you. So you have to be guarded about what you say.

00:43:07:13 – 00:43:31:25

But the truth is, if the truth is on your side, that’s a wonderful position to be in, right? Yeah, guys, I think again, it does come down also to these social norms that we were just talking about in the previous myth. Like if you are truly, as you’re saying, Tim and Justin innocent of a crime and you feel that and you know it in your bones, normally socially, you want to scream it to the hilltops.

00:43:31:25 – 00:43:57:20

You want to run into the police department and tell them why you’re innocent, right? But again, interactions with law enforcement are not normal social interactions. Police do have the power, obviously, to charge you with crimes which can ruin your life, which can add a criminal record to you. So the moment you start trying to navigate that yourself, you are doing that with individuals in society that can ruin your life.

00:43:57:20 – 00:44:15:02

And this isn’t a knock on the police. The police are doing trying to do good work out there, but they do have the power to charge you with crimes which can add all these other things to your your life. That can be a big problem and really ruin it. So it’s important to get an attorney, talk it over with a lawyer, take a breath.

00:44:15:03 – 00:44:36:28

Don’t you know, vomit through the mouth all this information that you haven’t consulted with someone on before you do it, manage it correctly because it could change your life? Yeah, because the benefit to is that when you tell your attorney the truth and I look at you and I say, but come on, you know, you’d rather your attorney say that to you than an officer, right?

00:44:36:29 – 00:44:53:02

And then and then at least we know this is where your story looks pretty bad, right? So we got to be prepared to explain this thing. We got to be prepared to, you know, this is a fact that’s not going to look good for you, even though it’s true. And we got to be prepared to to come to terms with that.

00:44:53:03 – 00:45:21:28

Yeah. I mean, you’re right. And think about again, so awkward social interactions like part of our job is to sometimes have that awkward social interaction of being like, really, man, really? That’s what we’re going with. You know, I’ve had that conversation thousands of times with people and it is an uncomfortable conversation, but it is better to have that conversation in a private conference room with your lawyer than to try to have that conversation on record being recorded in a police officer’s conference room.

00:45:22:01 – 00:45:43:13

So, yeah, every day of the week. So all right. You’re absolutely right. And Justin, you kind of hit on something I thought was interesting that I wanted to hammer home a little bit, you know, statements that you say a lot of times can be perceived differently by people. You know, we’re all three sitting here in this podcast studio and we’re all perceiving this probably a little bit differently, right?

00:45:43:14 – 00:46:04:05

Why are you insulting me? Well, it’s easy. It’s okay. Simple. Tim, over there isn’t something. Yeah, like I take offense to it. You just like I’m not perceiving what’s going on, right? That’s pretty good. That’s the point, right? But again, I mean, statements can be misunderstood or understood differently. They could be misconstrued or construed differently. Remembered incorrectly or differently.

00:46:04:05 – 00:46:22:28

Recalled differently. Right. And at the end of the day, used against you. So that’s why, again, if we’re going to do something on the record with law enforcement, you do it with your lawyer and there are times to do it. There are times to do it and to save yourself. But it’s not always, you know, not always and not on your own.

00:46:22:29 – 00:46:48:26

No. Yeah. Okay. Let’s move on to the next one, guys. So the next myth that we have here is that only guilty people ask for a lawyer. If I’m not guilty. I don’t need a lawyer. And this just kind of goes basically, again, to the last myth. It’s actually quite the opposite. Smart people ask for a lawyer. Smart people take a breath, decompress.

00:46:48:28 – 00:47:13:05

Think about it before they talk, before they get involved. And once the system forces you to get involved, if you’re charged with a crime, get a lawyer. That is what a smart person does, not a guilty person. Okay, Tim, you want to add a little bit to that? All I’ll say is, I mean, we all have many ex clients, I think, who would disagree with that statement because they were innocent.

00:47:13:05 – 00:47:38:23

We defended them effectively, and they were either found not guilty or the charges were dismissed and they’re walking around without a criminal record. And those are people. They got a lawyer. Yeah, we were their attorney. Yeah, yeah, that’s a very good point, Justin. You want to add anything to that? No. I mean, I think a lot of people who claim that they’re innocent or actually are in a sense, and maybe thinking this, you know, only guilty people ask for a lawyer.

00:47:38:25 – 00:47:54:28

I forget exactly how the saying goes, but it’s something to the effect of, only a fool represents himself or something like that. Yeah, and it’s the old adage, fool for a client. Yes, yes. So again, a man who would represent himself as a fool for a client. Yeah. And I think we hear that all the time as lawyers.

00:47:54:29 – 00:48:17:02

I’m an attorney. And if I were charged with something, I would not represent myself. Absolutely. Yeah, I can, guys, I can tell you, I’ve in my career, I’ve represented a lot of attorneys in different things because we all know that. Yeah. And just because you’re a smart, educated person doesn’t mean that you’re not emotionally tied to something that you can screw that up and not navigate appropriately, you know?

00:48:17:03 – 00:48:38:26

So yeah, it’s very, very well taken. The other thing I just like to point out on this point is at no point in your trial, in your negotiations with the prosecutors in open court, can anyone ever say, look at this guy. He asked for a lawyer, so he must be guilty. That is protected. You’re allowed to do that.

00:48:38:26 – 00:48:59:23

And that cannot be used against you merely because you asked to exercise your right to have counsel and to consult with counsel. All right. Next myth guys. Again, kind of similar, but kind of flipping it over to the other side, like if you were sitting there on a jury, merely because this person is charged means that they’re probably guilty of the crime.

00:48:59:25 – 00:49:22:13

Right? We wouldn’t be here if they weren’t probably guilty of the crime. That’s not the starting block. So, Justin, you want to kind of lock into that a little bit? Yeah. I mean, as far as a jury trial goes, I would say the first time a potential juror is going to hear that as well, dear. You know, the defense attorney is going to bring that up.

00:49:22:15 – 00:49:41:19

Just because this person’s charged does not mean that they are guilty. The judge gives instructions. Yeah, I was just going to say that. Yeah. Again, just because this person is charged with the crime does not make them guilty. They are not guilty until they enter a guilty plea, and they are found guilty by either a judge or 12 of their peers.

00:49:41:21 – 00:50:01:28

And I think that there are a lot of cases. And again, going back to like the last two points that we made, tons of people who are innocent get charged with crimes. I mean, it’s just inevitable. And that could be for a number of reasons, mistaken identity. Somebody gives a statement that is false. We see that there’s a number of things.

00:50:01:28 – 00:50:21:08

I know Tim recently was dealing with a you had a PFA or something where there was just like some crazy allegations where they were clearly false. And I’ve had that, especially in PFA cases. I’m sure we’ve all had it in criminal cases. Yeah. I mean, it comes up in a frequently because they’re so motivated usually by charge. Yeah.

00:50:21:09 – 00:50:45:09

And usually it’s a relationship that has a lot of baggage. I’ll play devil’s advocate here again too. Yeah. This is because obviously there’s a huge difference. And I think your point is that this the fact that you’re charged cannot be offered as proof. It can’t be used to persuade a jury or a judge of your guilt. Right. But from a pragmatic standpoint, we understand that most people who are charged have done something.

00:50:45:10 – 00:51:08:04

Yes, yes. And that’s because officers, contrary to what some people out there may believe, are not just scooping random people off the street and charging them. They’re not just picking your name out of a phone book and slapping charges on you. You did something that drew the attention of law enforcement. Now there are, to Justin’s point, many people who have been charged on the word of somebody else, and that person was wrong or lying or incorrect.

00:51:08:04 – 00:51:27:11

But many times when you’re charged, it is. We all kind of know in the back of our mind that there was there is some reason why you were charged, but that’s not what we’re really talking about. We’re talking about in court. It can’t be used to be like, look, they charged him. Look, we came here to trial. He must be guilty.

00:51:27:13 – 00:51:48:22

Yeah, but I think we need to as a defense attorneys. I mean, we know that implicitly, and we identify that. And we know that the 12 people sitting in the box have a general intuition that the reason we’re here is because something happened, right, as all of us do. Right? And it would be kind of a silly trial if we were sitting there and the cop was like, yeah, I just picked this guy on the phone book, like, come on, we wouldn’t even be there, right?

00:51:48:23 – 00:52:05:29

So, I mean, they all know that intuitively, but then it does come down to proof. And as you said, Justin, they are instructed on that by the judge. This is the law. You have to like do the starting block is this person is innocent okay. And is the burden is on the government to prove them guilty beyond a reasonable doubt.

00:52:05:29 – 00:52:26:10

And we did an episode where we discussed reasonable doubt a lot. If you’re interested in looking at that to learn more about that. All right. How about kind of another myth here? If I accept a plea deal on a case, that means I’m guilty and I didn’t do it, so I’m never accepting a plea deal. I’m never even going to consider a plea offer.

00:52:26:13 – 00:52:52:27

I don’t even want to negotiate. I’m innocent. I’m going to trial. Well, hold on. Hit the brakes. There’s discussion there because there’s a lot of indirect things that affect you in cases if you’re convicted that sometimes you can avoid very easily or appropriately through plea offers and negotiations and lessening and reductions and things like that. So you want to tell me maybe Tim, a little bit about that?

00:52:52:28 – 00:53:10:28

Well, on a surface level, I mean, you have to acknowledge that there’s there’s merit to that view, because if you accept a plea deal, by definition you are guilty. Yeah, I mean, guilty morally. You feel like that, right? And that’s why I said it. Like, it definitely feels like. Right. You’re going to be convicted even if you plead no contest.

00:53:10:28 – 00:53:51:27

It’s treated as a conviction, right? But to your point, even like ARD, which is something where you accelerate a rehabilitative disposition, we’ve talked about it before, where you would come out of that program and you would have no conviction or criminal record. Even that is you conceding at a certain level that it is the best option out of many bad options, because the alternative is you go to trial and a jury doesn’t believe you, and they convict you of stuff that you really didn’t do well, you can take a plea to something lesser, acknowledging that there are there are potentially major defects in your defense strategy, major defects in how this will be perceived by

00:53:51:27 – 00:54:13:26

a judge or a jury that will lead to very adverse outcomes in the form of conviction, jail time, etc.. So yes, on a very basic level, if you take a plea deal or if you negotiate, there is a sense in which you are going to have to cop to something. You are going to have to admit, Gill, potentially, and you are going to be convicted and and you will be treated and sentenced as if you’re guilty.

00:54:13:27 – 00:54:34:02

Right. And I agree with you. It feels sometimes like wrong. Right? Like let’s use the example of like, okay, you’ve got this case. You’ve got two options on the table. You can take a misdemeanor charge on your criminal record and pay a fine, or you can risk going to trial on a felony. And if you’re convicted, go to state prison for multiple years.

00:54:34:03 – 00:54:52:02

Right. That is a tough pill to swallow. And a lot of sex crimes are in that position, because a lot of that, some of the more traditional ones, they end up being one person’s word against another person’s word. And and you may look at that and think, well, I’m fine with those odds. Let’s roll those dice. But that’s a dice roll both ways.

00:54:52:09 – 00:55:07:15

And the Commonwealth has incentives to come to you and try to negotiate it, because they know that their case may rest on a single person, and maybe that person’s not all that credible. Or there’s there’s questions about whether they’ll be believed. Yeah, but let’s talk about it this way. But the same thing with loses. They don’t go to jail.

00:55:07:16 – 00:55:25:07

Exactly. They just move on to the next case. You lose, the stakes are higher. Yeah. Yep. And they may have a victim that they have to answer to and explain to and feel bad for and have that discussion with, which can be tough. We’ve all done it. We were all prosecutors, right. But they don’t go to jail. So our stakes are way higher.

00:55:25:08 – 00:55:39:09

And that’s why again, these discussions in my opinion, are at least worth having. I can’t tell you how many times I’ve told a client like, hey, let’s at least sit in a room for 20 minutes and talk over the options. And if at the end of the day we say, you know what, we’re going to roll the dice.

00:55:39:09 – 00:55:57:23

We we like our odds. We’re going to risk it. Then we do it. Something I frequently tell someone, tell people. And I just had a conversation like this yesterday with a guy where, I mean, I was very upfront with him. I told him, you know, my assessment of your prospects of success here at trial, it’s pretty bleak. This is this is not good for you.

00:55:57:23 – 00:56:14:22

And, you know, you can be committed to the course that you’ve chosen. And I think you’re going to lose because I don’t think it’s I don’t think it’s sound. I don’t think it’s a good strategy. And if I were your attorney, I would not advise you on that or I would advise you differently. But you can make that choice.

00:56:14:22 – 00:56:29:05

And I’ll tell people all the time. I mean, you going to trial to your point, doesn’t matter to me. You know, I could be the kind of attorney that I’ll be like, oh, you want to go to trial? Sure. I’m going to charge you X number of dollars. I’ll take your money and I’ll do the trial. I don’t care what happens.

00:56:29:05 – 00:56:47:26

Right. It’s an interesting point because technically, as an attorney, like if we were skiing and I just wanted to practice just from money, we’d take every case to trial because we’ll make more money. Right? But that is not ethically what a lawyer is supposed to do. We know attorneys. I think, if we’re honest, that we’re like, they don’t necessarily care about whether they win or lose a trial.

00:56:47:26 – 00:57:06:29

They’ll take the money because it’s a big paycheck and there’s they’re going to go home. They’ll go home at the end of the day with your money and you lose or win doesn’t matter. Yeah. What’s the saying? Laugh all the way to the bank, you know. And that’s just that’s an unethical way to practice law. But there are plenty of people that we know that do it that way.

00:57:07:02 – 00:57:35:01

But that’s why you really do have to have that conversation, right? The decision. And guys, I’m going to hammer this home, the decision on whether or not to go to trial and whether or not to take a plea deal is the decision is only to be made by the client themselves, by the defendant. Now, as an attorney, our role is to advise, to weigh pros and cons, to discuss this through with our client and to give them all the options and explain what could be bad or good about it.

00:57:35:01 – 00:57:51:19

Our role is not to force a plea down someone’s throat, or to tell someone they got to go to trial because we’ll win it and we guarantee it. I mean, if you ever say the words guarantee as a lawyer, you’re screwing up. You never should say that as a lawyer. It’s it’s it’s piss poor and people do it.

00:57:51:19 – 00:58:07:05

And I hear clients that come to see me and they say, this guy guaranteed me this, guarantee me that. And unfortunately, I have to tell them, you should never say that as a lawyer because you can’t. Okay. But you can get pretty close. You can say, hey, I’ve been doing this for 20 years, and I think your odds are pretty good, and here’s why.

00:58:07:05 – 00:58:24:23

And you explain it to them, but you don’t ever guarantee it. Now, again, to hammer my point home, the decision rests with the client, the attorneys, the advisor. They are the counselor. That’s why people call us counselors, right? Because that is our job. So that’s, I think, just an important point to hammer home, to just wrap that myth up.

00:58:24:28 – 00:58:42:13

Did you guys want to add anything else else to that part of it? I think what I used to tell people would be kind of similar to what you just said, you know? Sure. You know, we can go to trial. Your odds are slim to none. And at the end of the day, you’re going to be going to state prison, and I’m going to go home and sleep in my bed.

00:58:42:15 – 00:58:58:02

That’s fine, if that’s what you want to do. I don’t want to do that. If that’s what you’re telling me you want to do, I still can live with it. At that point, I saw a clip from a guy who does a podcast too, and I forget his name. If it was maybe the briefing attorney or somebody else on social media who has a show, he’s pretty good, by the way.

00:58:58:03 – 00:59:22:08

Shout out to the briefing attorney. He does a good job. He said something like this where like, you know, there are clients who, when they go in to plead, they have misgivings about it afterwards. And he was talking, I think, largely in exaggeration, like hyperbole. But what he was saying was like, yeah, I mean, I, I did basically take you by the hand and tell you, you got to take this deal because they like, they got you the whole things on video, like you’re, you’re guilty.

00:59:22:08 – 00:59:38:23

They’re going to be able to prove it. You’re going to go to jail for life or whatever. And so, you know, there may be a part of that that sounds coercive or it sounds like he’s not doing his job, but in fact, he’s looking out for the best interest of this person because he has a different view of the case than the person who is involved.

00:59:38:25 – 01:00:02:20

It’s a bird’s eye view, and that overhead view allows him to make a decision of saying, look, I can see what you’re walking into. I can see that you’re walking into a U-shaped ambush here, and I want you to avoid that pitfall. And so, yeah, he may exert pressure and tell you, you really should do this. You would be foolish not to do this, or it’s not in your best interest to reject this offer.

01:00:02:20 – 01:00:25:24

And you may go along with that because you feel the pressure to do it. And then later you may come to, to decide. You know what? Maybe I should have fought this and gone to trial. But you should remember the words of your attorney in the moment, because that attorney knew more about the case from a legal perspective than you, and was in a better position to render an opinion about whether or not you were going to win.

01:00:25:25 – 01:00:40:25

We may never know whether you would have won or lost a trial, but I’ll tell you between two options. If I’m going to listen to a seasoned trial attorney and they’re going to say, we would have lost, and the defendant is saying, I could have fought it and beaten it. Which of those two people am I going to believe?

01:00:40:29 – 01:01:07:13

I’m going to believe the attorney. Yeah, yeah. Point very well taken there, Tim. I mean, these conversations are something that again, you talk about awkward conversations. I mean, a lot of the conversations we have to have with our clients are sometimes awkward, but they’re serious, right? And I tell my clients all the time, you did not hire me for me to tell you what you want to here and just be like a mirror to what you want to hear.

01:01:07:20 – 01:01:25:27

You hired me because I’ve been doing this a very long time. I have experience with this. I know who we’re dealing with, and I analyze very in a very, sometimes complex way. The evidence against you and my analysis of that is X, and that is sometimes not what they want to hear many times. But those are the attorneys that you want.

01:01:26:01 – 01:01:44:04

Yeah. But that’s, it’s, it’s and I think by and large, I would say almost 100% of people that I have those types of conversations with. And I tell them why I have to say it to them. That way. They appreciate that. Yeah. Okay. Because you’ve gotten at that point pretty far along in the attorney client relationship and they trust you.

01:01:44:08 – 01:02:00:09

But again, I sometimes do lead with that. Like, listen, we’re going to have to have a tough discussion today. And some of the things I’m going to tell you, you might not want to hear, but here’s why I’m going to tell it to you. Okay. And then you weigh those options when you make that decision on whether or not you plead or go to trial, even if you are innocent of a crime.

01:02:00:10 – 01:02:15:15

Right. That’s a bedside manner that admittedly, like I have kind of developed and progressed on because I’ve had a lot of those conversations where, like you said, people do appreciate the honesty, but you do every once in a while, deal with someone where you know they don’t want the honesty, right. They do want to hear what they want to hear.

01:02:15:16 – 01:02:35:12

Yeah, but those are the types of clients where you can. And I think you’re getting really good at this at this point. But you kind of lead them out, right? Yeah. Try and I’ve stepped in to some of those, you know, I’ve stepped on some minds there and you know, and I’ve said things at an early stage where I’m like, look, I got to be honest with you, you know this, you did commit the crime based on what you’re telling me.

01:02:35:14 – 01:02:58:07

And yeah, that’s the other thing. I don’t think they actually did commit the crime. But then they tell you and that’s like, that is the crime, right? And it’s like, well, you know, based on even what you’re telling me, just taking what you’re saying in a vacuum, they have enough to sustain a conviction here. And, you know, there have been times, I think, where I’ve, I’ve led with that, like you said, and maybe not been as delicate about as it should have been, but that’s, you know, I am progressing, I think, in that sense.

01:02:58:07 – 01:03:12:03

So, you know, that’s that’s part of the art of what we’re doing. And. Yeah. Yeah. I think you there is an absolute art to a point where you have to being a lawyer. Yeah. You’ve been able to do. I’ve watched the way you talk to people, and it just amazes me sometimes the way that you’re able to package that stuff to them.

01:03:12:03 – 01:03:33:05

So. All right, well, why don’t we move on to another myth. And that is and we’ve talked about this in some previous episodes, when we get down to the burden of beyond a reasonable doubt, and this one, I’m going to just we’re going to unpack this a little bit more here, and that is that the defendant has to somehow prove in trial that they’re innocent, or they have to convince the jury that they didn’t do it.

01:03:33:07 – 01:03:59:15

Okay. That again, is is not the standard that in America the trial system is built on. It is always and will forever be the Commonwealth in Pennsylvania or the government in other states. Burden to prove that you are guilty beyond a reasonable doubt. That is the standard throughout all of America. Okay, that’s even the standard in the federal government as well.

01:03:59:15 – 01:04:24:14

So I just want to unpack that a little bit. I don’t want to go into crazy long explanations about this because we did that in previous episodes. But I think this also gets into the decision that a defendant sometimes has to make in trial as to whether or not they should or should not testify, because, again, if you testify, you are offering an explanation, a version of events that is usually more favorable to you.

01:04:24:14 – 01:04:47:27

But then you’re exposed to things like cross-examination and things like that. So, Justin, you want to I know you’ve done a ton of trials, both on both sides, where defendants have both chosen to testify and to not testify. And there’s advantages and detriments to both options. So can you unpack that for us a little bit? Yeah, absolutely. So the as you just said, burden of proof is beyond a reasonable doubt.

01:04:47:28 – 01:05:17:11

There’s absolutely no burden on the defendant unless we assert an affirmative defense. But essentially it’s all in the Commonwealth. I mean, as a defense attorney and a defendant, we can walk into trial and the Commonwealth could have 12, 20, 50 witnesses if they wanted. And we can never ask a single question, never make any statement. It is 100% on the Commonwealth to prove each and every element of the crime beyond reasonable doubt.

01:05:17:13 – 01:05:35:23

Right. And then, you know, in that type of situation and I’ve seen attorneys do that. Usually what happens is they don’t ask any questions. They don’t put on any witnesses. Their client remains silent. The jury, of course, gets instructed that they are not allowed to hold that against the defendant in any form or fashion, and that is hammered home to them.

01:05:35:25 – 01:05:55:13

And I think juries respect that. Yeah. Once they’re told by the judge and explain. But what usually happens then is you get up and you’re closing and it can be sometimes fairly short, and you hammer home that one chink in the armor where they can’t meet that one element. And here’s why. And I even sometimes in those situations, I’ll say to the jury, you were probably wondering what we were doing over there.

01:05:55:13 – 01:06:12:20

We were sitting over there. We didn’t ask a single question. We didn’t say anything. We didn’t even object to a single thing they said. And the reason we did that is because I knew I was going to get up here in my closing, and I was going to tell you, this is the piece of the puzzle that’s missing and the burdens on the Commonwealth, and this is why they can’t prove it.

01:06:12:20 – 01:06:29:19

And because of that, ladies and gentlemen, you must find my client not guilty. The judge is going to instruct you to that because this is missing. And sometimes it’s as simple as that. It really is. You don’t have to make it out to be a two week long trial just to put on a dog and pony show. No, I know, and I think this goes on both sides.

01:06:29:20 – 01:06:57:03

I mean, as a prosecutor, you you absolutely have to ask more questions than you as a defense attorneys on you. But even though that’s the case, it’s not about how many questions, it’s about the right questions. So as a defense attorney and there’s a more seasoned defense attorney that I was trying a person not to possess firearm case with, I was expecting this case to last, I don’t know, probably 3 or 4 days.

01:06:57:03 – 01:07:13:16

I had a bunch of witnesses, a couple experts, and we finished in about a day and a half, two days. And I remember after the trial talking with him and I was like, and you didn’t really ask it. You know that many questions. I was expecting like a lot more. And he’s like, doesn’t matter how many asks only matters if he asked the right ones.

01:07:13:17 – 01:07:37:27

And he I mean, he was right. And he did. He asked the right ones. I mean, I ended up getting it guilty because, I mean, it was pretty clear that the guy was guilty. Yeah. But again, that to me was the first time I think that I experienced that and I wasn’t expecting it. And then I’ve tried to remember that not only after that in the DA’s office, but also now, because, again, nobody wants to sit in trial for two weeks, especially the jury.

01:07:37:28 – 01:07:59:08

Yeah. And just hear boring stuff over and over again, or 10,000 objections or the same question asked 50, 50 different times or 50 different ways. That again, gets to like juries can sometimes punish you. If you’re an idiot of a lawyer and you are a fool, you know, and doesn’t like that. Yeah. And you can get you can actually do a disservice to your client being like that in trial.

01:07:59:09 – 01:08:18:17

Yeah, you have to be. We talked to us and you said this, I think, in a prior episode, maybe one of the first ones we ever did, that you have to be your genuine self in trial because juries will see through that very, very quickly. Yeah. And I think that another thing that ties into this is our job as attorneys is to figure out where exactly is the fight.

01:08:18:19 – 01:08:34:03

Yeah. Because it’s important we’re going to handle cases in our trial strategy is going to be different. If this is a case where there is a question about the law. So there’s a question about what law applies that’s going to change how we we do. We’re not going to beat people up about the facts or what really happened.

01:08:34:03 – 01:08:56:23

If it’s a legal question, the facts aren’t in dispute. We’re arguing law. But if the facts are in dispute now, maybe I am going to ask more questions of a particular witness because their perspective, the facts that they’re willing to state those, that’s the issue. And then you’ve got kind of a hybrid version where the facts really aren’t in dispute, but how the facts, whether the facts satisfy the law.

01:08:56:26 – 01:09:14:07

Maybe that’s where the dispute is. And you have to convince a jury that when they apply these facts to the law, they get a not guilty outcome if they’re applying the law effectively. So, you know, you have to figure out what kind of case is it? Is it a legal battle? Is it a factual battle? Is it an analytical battle?

01:09:14:07 – 01:09:38:09

And then that’s going to determine what questions you ask and how many you ask. If it’s a factual battle, you’re going to have to ask more questions. And if you have savvy attorneys on both sides, prosecution and defense, and you can have those conversations ahead of time, you can save a hell of a lot of headaches, lengthy, unreasonable, unnecessary trial, parts of the trial, I should say, and streamline things a bit.

01:09:38:10 – 01:10:01:19

And, you know, sometimes that’s actually highly advantageous to your own client as a defense attorney. Because, again, to Justin’s point, earlier, like, juries can punish you if they think you’re being a full and dragon stuff out and being unreasonable. So and I think another thing to your point, I like to drive this home. It is important to understand that if a jury finds you not guilty, they did not find you innocent.

01:10:01:21 – 01:10:22:03

Okay. There is no verdict that ever can be handed down that says you are innocent of this crime. That is not how the justice system works. Essentially, a not guilty verdict says that the Commonwealth failed to prove their burden beyond a reasonable doubt, as we said earlier. So it’s either the verdict is one of two things guilty or not guilty.

01:10:22:05 – 01:10:40:13

Never innocent. I should like that. You said that. Yeah. I don’t think a lot of people think about that. Yeah. I can’t even say that I’ve really ever thought about it like that. Yeah, as I’m sitting here right now, but, Well, again, I mean, some people like to, like, they want to go to trial to vindicate themselves, right?

01:10:40:14 – 01:10:54:19

Absolutely. And you have to sometimes I’ve had those conversations with my clients like, you’re never going to be in a position where you are actually 100% vindicated because you’re not going to be found innocent of the crime, right? Can we beat it? Yeah. Can we go to trial? Yeah. Will you be found not guilty if they can’t prove it?

01:10:54:19 – 01:11:13:22

Yes, but that might not get you to the point of feeling vindicated. Right? And if it’s a feeling thing for the client, you have to kind of unpack that with them. You know, in the discussion on plea deals and trials and all that. Yeah. And I would say, man, there aren’t too many people that I’ve had come to me and they’re just like, I’m 100% innocent.

01:11:13:23 – 01:11:29:05

I was telling you, the one guy that I had a few months ago that we went in for that interview, I truly believe that he didn’t do it based on everything. There was just a lot of, I think, lies being spread around, and he had everything to back it up that, you know, he’s like this. None of this happened.

01:11:29:13 – 01:11:57:28

And again, we avoided charges. And I think really that’s the only way that if you do receive charges, again, you’re either guilty or not guilty. But if you can again contact an attorney when something comes up, especially if like they’re investigating you, whether that’s police, detectives, whatever it may be prior to filing charges, if you get in touch with an attorney and we’re able to go in and make contact, and we do this all the time, people call us before they’re ever charged, and we help them avoid charges altogether.

01:11:57:29 – 01:12:20:20

Yes, that’s I think, the only way that we can, as we sit here today, say, you know, that person’s innocent, right? I love that you brought that up, Justin, because I think a lot of attorneys out there that are in the criminal realm, prosecutors or defense attorneys, they count their, I guess, whether they’re good or not as a lawyer as to their verdicts, right, that they get in trials.

01:12:20:20 – 01:12:41:22

But I will say more than more times than not, the battle as a defense attorney is one before the charge is ever even filed. Yes. And we have had many situations here where people contact us early when they’re being investigated, and we are able to intervene legally as the attorney and engage with the police, engage with law enforcement.

01:12:41:22 – 01:13:01:16

And we’ve been able to completely avoid that person being even charged out of the gate, because the moment you get charged out of the gate, there’s a record that’s created that you were charged with this crime and it is a nightmare. It’s doable, but there’s a nightmare to get that to be erased. If that never goes on, the record never even happens, and you’ve won that case out of the gate.

01:13:01:17 – 01:13:24:17

I’d go as far as to say count that as a not guilty or an innocent verdict if that ever existed. Right? Because damn, that’s where you win cases a lot of times. And, and I love when we’re able to do that for people because you really actually help them fix their lives. Like, and that saves them from the year or two and the financial drain that, you know, the whole case would take for them.

01:13:24:20 – 01:13:47:29

Prosecutors, I think good prosecutors see the battle before the trial to. I think like a good prosecutor. And I think it was one of my strengths as a prosecutor was that I really liked the case management aspect of being a prosecutor. That’s why I hired you, Tim. And and, you know, so I, I had many opportunities where it would have probably been better for my career as a prosecutor to take the case to trial, to say, screw you.

01:13:48:01 – 01:14:01:11

We’re not doing a plea deal for this. I’m going to take it to trial, and I’m going to have fun with it. And I will get a guilty because it’s that clear. And I’m going to jam it down your throat because I have the ability to do that. And that actually gets into the last myth I was going to go over today, and I’m going to talk about it now.

01:14:01:11 – 01:14:21:15

Now, because you brought it up, that the myth is that it’s a, a prosecutor’s job is to win. That is that is not true. I think there’s an old guard of attorneys on both sides out there that believe that that trial is like it’s this inherent good. And in order to be a good attorney, you got to do trials.

01:14:21:15 – 01:14:38:28

You got to have as many trials. And there are certain cases where you you just have to take it to trial. I look at it from a different perspective. I do acknowledge there are cases out there that have to go to trial, and that’s because there is a genuine dispute about what happened, whether the person is is guilty, whether the burden can be met.

01:14:39:05 – 01:15:09:28

But the old guard out there, I mean, some of them will they’ll take it out on prosecutors, young prosecutors, if it looks like they’re dodging trials. Right. Defense attorneys can be the same way. But Justin said it. I think in the last episode we did trials. Not everything. And and but there are people in the leadership roles in public defender’s offices and prosecutors offices that believe that trials just this inherent good that that if you’re not doing trials, what are you even doing?

01:15:09:29 – 01:15:31:17

Right? You’re like, you’re tracking your progress as a lawyer. That’s just not how just by doing trial, just not how it is, guys. I mean, I’ll say it right here, like I have one far, far more cases. One meaning full dismissals, full case dismissals through either engaging before the charges are filed or in pretrial advocacy for my client right before we ever step into the trial room.

01:15:31:17 – 01:15:47:16

And we’re talking about full charge dismissals here. I’m not talking about, oh, we plot it out and we work something out, like far more cases by being savvy in that regard as a lawyer than by going in and being the kind of guy that I’m just a gunslinger. And all I want to do is be there in the courtroom and try cases every day, day in and day out.

01:15:47:17 – 01:16:16:01

Right? I mean, because, again, as a good as a lawyer that cares about their clients, your obligation is to do the best you can for your client and what their wishes and needs are. And those do sometimes diverge. And you have to have those conversations with your client. But at the end of the day, if you can win that case for your client in a way that they didn’t even foresee, I can’t tell you how many gifts get delivered here because of people that have won cases that way.

01:16:16:02 – 01:16:48:09

Right? You know, and we didn’t go in there and put on the dog and pony show. We didn’t destroy their family in the process. You know, making family members have to take sides, you know? Yeah. Well, that’s another big one that comes up a lot. Is the family destruction that happens with some of this stuff. And I would say to that, like, we all probably have stories from our trials and memories that we have, but a lot of cases that I that I remember and I think fondly of, there are cases where I can look back on it and think, man, both sides started really far apart, and by the end of this thing, we

01:16:48:09 – 01:17:10:20

didn’t even have to get to trial and we were all on the same page. Those are the cases that I feel like I feel better about those cases in some ways, because both sides masterfully navigated this case where it looked like there was never going to be any compromise either way. And we all navigated it expertly to a point where we got something resembling justice, and we did that without having to go to trial.

01:17:10:21 – 01:17:29:02

Yeah. And when I have that happen, and that does happen a good amount. And I like to at the end of all that, go to the prosecutor and say, hey, I just want to point out how well you did this. I think I did this with you guys when you were like, I would. And it’s not it’s not sucking up to them.

01:17:29:02 – 01:17:49:21

It’s not trying to. It’s just it’s important to point out when someone does something appropriately for the greater good. And I like to do that. Now. Do I sometimes have to go and put a prosecutor in their place or, you know, you know, toy with them or whatever? I mean, sometimes you got to do that, but by and large, we are all trying to get to a good result.

01:17:49:22 – 01:18:09:16

Right? And like you said, I think or one of you said this, at the end of the day, if the prosecution loses, they go home and go to bed and go on to the next case. They don’t go to jail. Absolutely. And they know that. Okay. Yeah. So when they actually put the effort in and really dig and they, they work with you and we get to a greater good result that is worth the accolades to point that out.

01:18:09:17 – 01:18:26:29

One of my mentors as a prosecutor, you know, because he was very big on this, he, he, he had been doing it for a long time. And he, he was very big on that idea that, you know, sometimes you’re going to lose, but you got to overcome the like the animalistic part of your brain that’s like, oh, I lost, you know, like almost like it’s a competition.

01:18:27:02 – 01:18:45:22

We all have a competitive combat. We all have this competitive mindset. We want to win. We want to win, we want to win. But like, I remember one time getting kind of pissed because, like, at a preliminary hearing, the judge dismissed the case or whatever. And it was obvious. Or at least I thought it was obvious that it shouldn’t have been dismissed.

01:18:45:25 – 01:19:09:02

Not sure. Not you. I don’t remember it was. Well, that’s a different one that got you. You may know that story too, but no, that was a different one. I still maintained that he was wrong about that. But you know what this mentor of mine said to me was, you know, maybe the judge is doing you a favor here.

01:19:09:04 – 01:19:35:13

You know, like, maybe that’s another way to look at it. You don’t look at this and think, well, I lost. Maybe the judge is attuned to an issue here and he’s just not convinced. And so he’s tossing it out. And by letting it die on the vine, you’re saving yourself aggravation down the road. So I think the challenge with attorneys sometimes is even when we get a result, we don’t like being able to see past that and see it, you know, see the forest for the trees.

01:19:35:17 – 01:19:54:13

And that was what my mentor as a prosecutor was trying to tell me is that, like, sometimes losing is actually winning. Yeah. You learn from losing. I mean, that goes for everything in life. I will say, if you don’t take a lesson away from every loss that you have and you think about it and unpack it and historically review it, you’ve screwed up, right?

01:19:54:15 – 01:20:22:01

Like learn from your losses, become better from them and move on. And we I think we know prosecutors that will get better about losses and things, you know, and that will get better as I have I’ve seen a lot of prosecutors transformation as lawyers. And for the most part, a lot of them have been very, very positive. I mean, I remember being a young prosecutor myself and feeling like I to prove that I was a good prosecutor, I had to win all the time.

01:20:22:02 – 01:20:44:20

Right. And then that starts to transition. I know when I as I moved up in the prosecutor’s office, in the DA’s office and I got into the Major Crimes unit, I kind of learned that like. And that’s why you advance, right? I think the higher ups in that office look for that too, because they want to see people that are reasonable and get it and figure out how to handle themselves.

01:20:44:20 – 01:21:00:19

You say it all the time. I mean, you’re going to give yourself a heart attack or whatever you can add about all these cases. Yeah, I do. I think you have to put yourself in a prosecutor’s position. I mean, they have hundreds of cases at any given moment, thousands more knocking on the door every single year. Yeah. I mean, can you feel waterfall?

01:21:00:19 – 01:21:17:27

Never stop. Can you really fall? Like, can you really be upset about every loss? Can you really dwell on every loss or is it going to destroy you? Yeah, that was me last year. I will say, honestly, being a lawyer I think has aged me. That’s why I have some gray hair and all that gray hair right now.

01:21:17:28 – 01:21:34:05

I know beard, it’s terrible. You should see when I have my beard. I actually had the what? Actually, I have a little gray on my go. See? But my wife actually made me dye my goatee when we were on vacation because she wanted to see how funny I would look. So for those of you that if you look back a few podcasts, you’ll remember the one we did with the weight.

01:21:34:07 – 01:21:51:19

Yeah, you remember I had the beard. It was all brown about that. Yeah, that was die. That was just for me. You know, I would never have put that together. Even though you. You still have some of that facial hair. Now, I would never have put that together if you hadn’t said anything.

01:21:51:21 – 01:22:10:29

Oh, nice. Nice. Yeah. For those of you that didn’t see the episode of me with the crazy beard that I did leave, I throw a screenshot in. Yeah, yeah. You want to. You want a rag on me? Throw that in there, Levi. Get me get a good shot, though. I’ll have to get shirts with just like your face on it from that episode, and we’ll just wear them in an episode.

01:22:11:01 – 01:22:30:03

Yeah. So that was my one and only escapade with Just For Men. I don’t know if I’ll ever go back to that, but my dad told me once that when you get gray hair as a lawyer, you get more respect. And I think to an extent that it’s true. So sagely, I will ride my gray hair with with pride.

01:22:30:07 – 01:22:48:04

Yeah, absolutely. All right. Thanks, Levi, for pointing that out I appreciate that. That’s hilarious. Yeah. All right. Okay, let’s let’s move on to another myth. Guys. We got a few more today, and then we’ll wrap it up there. I did want to. There is one myth I was going to talk about today, but for the sake of time, I’m not going to.

01:22:48:05 – 01:23:03:08

It involves hearsay and what it is and the reason I’m not going to pull up so on that. Yeah. The reason I’m not going to talk about it today is it’s such an interesting and engaging and complex topic that we are going to do an entire episode on hearsay. In fact, we might do it soon because bringing it up.

01:23:03:10 – 01:23:20:19

But there are a few more I wanted to go over. And that is that myth that everyone who gets charged with a crime gets a jury trial, and that just isn’t true. I mean, like like legally, not every crime is entitled to a jury trial. So, Justin, you want to you want to just tell us about that? I mean, it’s pretty simple.

01:23:20:20 – 01:23:38:20

It’s pretty straightforward. Basically, any crime that comes with a penalty of a year or more, you are eligible for a jury trial. If it does not, you are not. You’re only entitled to a bench trial. So first fence, DUIs, some second offense, DUIs, only bench trial. Unless there’s an accompanying charge. Like, say you get a drug DUI and you have a paraphernalia.

01:23:38:20 – 01:24:05:02

Technically, you qualify for a jury trial, but the jury’s not hearing the facts of the DUI unless it’s relevant to the paraphernalia. And then the judge ultimately decides that small amount of marijuana disorderly. Well, no summaries. If it’s just summaries, that’s not coming up to court case. I mean, basically got them, I think I basically the rule is an airlock would be another one if the potential punishment is one year or more.

01:24:05:05 – 01:24:19:22

It’s a jury trial. Yeah. I always tell people it’s six months as a cough because there’s nothing like we don’t have anything in the crimes code between six months and 12 months. Yeah, but if you say the cutoff is six months, anything over six months, it has to be. Yeah, right. It would be a year. Realistically, it’s a year.

01:24:19:22 – 01:24:36:03

Yeah. Realistically, if it’s a punishment, just a different it’s like a 6 in 1 is more difficult. Yeah. Well I think I was making it simpler but all right. So hopefully that’s pretty self-explanatory guys. But the bottom line is if your potential penalty is more than a year, you are entitled to a jury trial, even if it’s for something kind of silly like paraphernalia.

01:24:36:09 – 01:24:51:20

You technically could have a jury trial now. I think that would probably resolve differently because you work with a prosecutor and be reasonable about it. Well, I will say this to in any case, that is eligible for a jury trial, if both the Commonwealth and Defense agree, can be tried as a bench. That’s a good point, Justin. Sides have to agree.

01:24:51:21 – 01:25:09:15

Yeah. Yeah. Absolutely right. Their right to a trial I tried a felony I think it was a felony. One gun case with a non-jury trial one time. Can it be like almost unheard of. Can it go the other way. Can both. If you only have a bench trial, you can’t both agree to have a jury trial. We had a guy that I had a guy one time as a source told a story about.

01:25:09:16 – 01:25:26:23

Yeah, I had a guy that was asserting a right to a jury trial on a first offense DUI, and he cited some weird case where, like, it was in some weird county. I don’t know if it was like Bradford or something up north where they there was it wasn’t even clear that the guy did have a trial, a jury trial.

01:25:26:23 – 01:25:47:19

But it seemed from the opinion that they did give him a jury trial with a six month. And I told the judge I was like, we don’t know why they did that. We don’t know why they gave him a jury trial. Maybe there were other charges saying maybe there were other charges that the jury got to hear, and maybe it was it was technically a bench trial or like a split trial where you have a DUI that’s being heard.

01:25:47:21 – 01:26:02:21

Yeah, but they don’t you don’t buy for gate them. I like I tried a case when you can, you can, but I don’t know why you would like I, I had a case one time where it was like obstruction, resisting disorderly conduct and a first offense DUI. Yeah, we just tried them at the same time. Yeah, you’re right, it’s all right.

01:26:02:21 – 01:26:20:26

But technically, in that scenario, the judge is making the decision. The DUI and freeze on the other one, when we’ve had cases where there’s summaries attached as well, and we’re bringing those into trial and the judge, like you’re not going to the jury’s not going to hear anything about the summary offenses. The judge will just read a verdict at the end, like I find them guilty of these subsections or whatever.

01:26:20:27 – 01:26:35:14

Right. Yeah. Right. Exactly. And so, like, this guy was trying to say, well, I should get a jury trial. And it was Judge Cook at the time. And she was like, no, like, we’re not going to do that, like I don’t. Why would we do that? And I was like, no, we shouldn’t do that because we don’t even know why they did it.

01:26:35:15 – 01:26:58:09

All right. Okay, let’s move on to our, I guess, our last myth for today, and that is that lawyers can surprise a witness at trial with, like, hidden evidence. Right? That you can, like, hold stuff back and have that moment in court where you’re like, surprise, you’re lying. And here’s why, and I can prove it. And that just that’s not true because of the rules of discovery.

01:26:58:10 – 01:27:16:01

Right? So, Tim, you want to unpack that a little bit. Just tell us a little about rules of discovery and what’s required. And also let’s talk about Brady to a little bit. Yeah Brady. And we also have a rule in our rules of criminal procedure that that enumerate specific things that are mandatory disclosures for discovery, things that have to be turned over.

01:27:16:03 – 01:27:39:27

We are not truly like an open file discovery state. There are some that are advocates of that, of that view. I, I, for one, am not really an advocate of that view. I don’t think that it’s necessary in most cases, because the main thing that you’re looking at is relevance for the material in question. And generally the rules are if it’s exculpatory, you got to turn it over.

01:27:39:27 – 01:28:04:19

If it deals with credibility of the witnesses that you’re calling, you got to turn it over. And then there’s other things like prior criminal record and some stuff like that that have to be turned over there, mandatory disclosures. Those things were already guaranteed, those as part of discovery. So we get to see all that stuff. There are some things that are not required, but they can be disclosed if a judge orders them to be disclosed.

01:28:04:19 – 01:28:27:10

And sometimes that’s a little bit of a dance that we have to do as attorneys to say, you know, we think this should be turned over and get a judge to say, yes, it should be turned over. There are things, as a prosecutor, where defense attorneys were asking for it, and I maybe would not have been opposed to showing it, but kind of there’s there’s a bigger principle of some kind at play where it’s like, in principle, we are not going to voluntarily turn this over.

01:28:27:16 – 01:28:49:04

If you want to see this, you need to get a judicial order. Right. And then then obviously I’ll comply. So like that’s why I say there’s a little bit of a dance sometimes. Yeah I materials what I was talking about witness credibility. That’s a big one. Yeah. And again Brady specifically is that the government has to turn over exculpatory evidence to defense and exculpatory evidence.

01:28:49:04 – 01:29:08:26

For those of you that don’t know what that word is, is essentially favorable evidence to the defendant, okay. And if that is not turned over, that can actually be considered prosecutorial misconduct. And there’s some ethical violations there that can come into play. So judges are usually really strict about this. Same thing with Giglio. And that was always a big like as a prosecutor you got to be looking out for that.

01:29:08:28 – 01:29:38:21

Like if you’ve got an officer who has prior criminal charges or has something like that, or if you have a witness that you’re calling and that witness has active criminal charges or and the rules even more broad than that, it’s it’s charges that were either initiated after the case where they are a witness were open before but but resolved or are currently pending while they are a witness, especially if you’ve made a deal with that witness in exchange for their testimony.

01:29:38:21 – 01:30:03:11

All of that has to be disclosed. If you don’t disclose it, that’s prosecutorial misconduct and you can lose your law license. Yeah. I mean, and that’s how severe it is. Like that’s what I’m saying. Like they’re really strict about that. Justin, I don’t remember if it was you, but were you the one telling us a story in one of the prior episodes where you had a defendant who was pro se and you hadn’t turned over certain piece of evidence?

01:30:03:19 – 01:30:20:16

It was like a video, and it was something in the video that he was sent. Okay, Tim, that was you. It was something in the video he wasn’t going to show. You weren’t going to show, like the whole video or something. No, I had turned everything over to him, but I had I wouldn’t show the jury because it was prejudicial.

01:30:20:17 – 01:30:35:28

It was. But he was like demanding it and it and eventually you had to show it. He had seen it all like we had given all the discovery to him. Now he was alleging that we hadn’t given him all the discovery. And the prosecutor’s office I was in at the time was very big on like bait stamping and cataloging the evidence, the discovery that you turn over.

01:30:35:28 – 01:31:07:15

So everything was logged. I had like logs of this, this discovery marked with this code was given to him on this date in court or whatever. We did this, we made this available. We gave. And then, as was my custom, very often at the time, I would very often with pro se defendants especially, I would reproduce all of the discovery again, and I would give it to them with a full inventory sheet prior to trial, so that there could be no doubt they had everything, because I may have gotten the case assigned halfway through.

01:31:07:15 – 01:31:33:28

And so maybe there is a question about what prior attorneys have or whether he lost it or something. So what I was doing was saying, yep, we turned everything over along the along the life of the case. But I’m also turning everything over again out of abundance of caution so that I make sure that he has everything and now he can’t claim he didn’t have everything because the deadline, and this is the other thing that we should say is that the deadline to get discovery per the rules and per the case law is trial.

01:31:34:01 – 01:32:02:21

So as long as it’s turned over prior to the commencement of trial, it’s it’s legit. But you and I did have some cases where we were turning something over, you know, right before picking a jury. And, you know, defense attorneys get very upset about that. And I understand. So but there are just some things out there that when you’re prepping a case, you are you turn over everything that you have in your possession because that’s what the rule requires.

01:32:02:21 – 01:32:17:15

It has to be in your possession. If I don’t if I don’t possess it or know it exists, then I can’t turn it over. And as I’m prepping the case and I’m doing a deep dive and I’m looking at everything, I discover there might be something else available that we now know exists that we didn’t know about. Before.

01:32:17:19 – 01:32:39:29

I go and I get it, and I immediately turned it over. Yeah, same thing with prison calls, right? Like the prison calls are active and ongoing for the entire time the person’s incarcerated. So if you’re dealing with a defendant who’s incarcerated, they’re going to have prison calls that you turn over. Yeah, right along the way. But there’s going to be prison calls from the night before trial to.

01:32:40:01 – 01:32:59:28

Yeah, turn them over. Yeah. So they can’t say, well, you’re only giving us prison calls on the day of trial. Well, yeah, it’s because he was making calls last night and it’s discoverable, right? Right. Yeah. No, you’re absolutely right. I remember when I was a prosecutor, actually, this was one of the reasons I joined the previous firm I was with, with the prior attorney I worked with years ago.

01:33:00:01 – 01:33:23:25

Was it was it was a burglary case of a the red rose in here in New York or tavern Red Rose tavern out in Helen. And we were taking photographs of the bar prior to trial. I was out there with a detective as a prosecutor. This is I’m trying to remember because this was back in like 2000, I don’t know, 12, 11, something like that.

01:33:23:25 – 01:33:46:11

And we were actively collecting evidence as we were preparing to try the case. So I would go out there with the the detective might in the case, and we would take photographs and we would get some more witness statements from people at the bar, things like that. And I remember immediately, I literally walked down to this attorney’s office and handed this stuff to him as it was happening.

01:33:46:11 – 01:34:03:17

And I remember just kind of almost for a week or two, like every day I was going down there and like, here’s more, here’s more. And then, like, we were about to start the trial. So yeah, you’re absolutely right. You have to turn that stuff over. Okay. Well, guys, that was a really good episode. Appreciate all that insight.

01:34:03:20 – 01:34:29:20

I’m sure, guys, there’s other myths out there that exist. And if you think of any or you have any, put them in our comments because we’ll probably do another episode on this down the road. And these are all things that we’ve been experiencing. So we kind of came up with. But if you as a individual in society have things that you think are, you know, the case maybe aren’t or you believe or myths that come up frequently, please bring them to our attention so we can we can touch on them.

01:34:29:25 – 01:34:49:15

I did want to talk about one other thing. And you guys, it’s going to be a surprise. You don’t know about this. This actually happened to me just last week when I was out of town. And it goes into the episode that we did on self-defense, and I wanted to bring it up because it’s something that happened to me, and I had a discussion with my children about it when it happened.

01:34:49:15 – 01:35:11:15

So as you guys know, I was away last week. Kind of unimportant where I was, but where I was at, was in America. I was with another family where we were traveling, and we had two vehicles, and we were pulling out from a certain area and kind of caravanning in the sense that I pulled out. I was the lead vehicle and the other vehicle, our friends, their family, was behind us.

01:35:11:19 – 01:35:36:17

They pulled out behind me and we were traveling down the road. Well, as soon as I pulled out, they pulled out behind me and apparently the individual and the vehicle behind them was very upset because he felt like they were cut off by by the people that were behind us. And I could see in my rearview mirror that my friend, the family that was driving that other vehicle, pulled over to the side of the road to kind of let this guy pass because he was really kind of being agitated.

01:35:36:20 – 01:36:04:03

So. And I could see that that individual was rolled down his window and was pointing and yelling and screaming at my friend, and I was worried about him. So I also pulled my vehicle over. I rolled down my window, and I kind of did one of these, like, go by, go by, please just pass us. And the individual decided to pull in front of my vehicle, block me in, and I have my whole family, all my children and I have five children in my car at the time, and they’re young.

01:36:04:05 – 01:36:25:01

Some of them are teenagers. But and he got out of the vehicle and he very aggressively came up to me and tried to physically get me out of the vehicle, presumably because he wanted to fight me on the side of the road like an idiot, and started yelling at me to get out of the car and screaming and yelling and doing all this dance.

01:36:25:01 – 01:36:49:05

So I rolled up my window, locked my doors, yelled at him that I was calling the police, which is what I did, and he got so angry that I would not get out of the car and fight him on the side of a busy road that he chose to go around to my wife’s side of the vehicle. She was in the passenger side, and I was pretty worried at that point because I was like, is he going to try to get my wife out of the car now or something like that?

01:36:49:05 – 01:37:27:19

But before he got to her door, he chose to kick the passenger side mirror off of the vehicle, causing damage to the vehicle. Now, I wanted to bring this up because we kind of talked about stuff like this in our self-defense episode where, you know, had I been armed in that situation, which I was not, because I was not somewhere where I brought my firearm to, I was thinking back on that as to what I would have done if I was armed, because I had a situation where this individual did not display a weapon, got out of the car aggressively, was in front of my vehicle screaming and yelling, trying to get me out of

01:37:27:19 – 01:37:46:11

the car. But I didn’t, and I had the ability to lock my doors, roll up my window right? And he thankfully did not break my window and try to extricate me there from the vehicle. But I felt at that point I was actually in the moment. I actually thought about our podcast episode, and I was kind of like, what would Tim do?

01:37:46:13 – 01:38:03:21

What would you do? Yeah, so, well, I thought about that. I thought in my in a position here where I should hit this individual, I should run him over and possibly kill him. Right? Because I have the ability to do that because he was standing in front of my vehicle and I had the vehicle on at the time, I hadn’t turned it off.

01:38:03:21 – 01:38:21:02

It was in park, but I could have just put it in a drive and hit him, and I probably would have ended up pinning him into his vehicle because he was right in front of me. But I chose not to do that because I didn’t think I had the ability to use deadly force in that moment, given the circumstances I was presented with.

01:38:21:04 – 01:38:35:10

So I did not do that. Of course, now, by the time he made it over to my wife’s window or my wife’s side of the car, I started thinking, okay, if he’s going to try to actually extricate my wife from the vehicle, I’m actually going to have to get out now. Thankfully, he chose to kick my mirror off.

01:38:35:10 – 01:38:54:07

I say thankfully, which is weird, but he did not try to, you know, remove her from the vehicle. And then he immediately fled to his car and took off. Right. I bring this up because this is a situation that it was actually pretty scary. Like because I was with my family, I had little children with me. And this, this he moth of an individual was acting like a fool.

01:38:54:08 – 01:39:13:01

And honestly, I mean, truth be told. Had I gotten out of the car, he probably would have immediately put me into the pavement. And, you know, it turns out I found out some things about him after I did my own investigation, who he was later, which we of course turned over to police, who he was, and I definitely would not have won that fight.

01:39:13:01 – 01:39:29:22

I would have kissed pavement quite quickly from what I found out. I’ll tell you guys more about that later. But in any event, I wanted to tell our viewers this because you may eventually find yourself in a situation like this, and the right thing to do in that scenario is not to use deadly force until you have to.

01:39:29:25 – 01:39:45:26

And thankfully, I had a sound enough mind to not do that because I thought to myself, if I wasn’t a lawyer and I didn’t know how this worked and I was just freaking out and scared I might have just hit the guy, which might have been justified. I mean, might have, let’s be real might depend on how he’s acting, but then I would have to go through a legal battle.

01:39:45:26 – 01:40:11:28

I could have been charged with a-GPS, assault, or maybe murder, right? Because I could have killed him. Yeah, and then your trip is just completely ruined. Trips ruined. I’m stuck where? I’m stuck in a different state. And I got to go there for legal battles, and I got to spend all this money to do that. And I just chose in the moment that it wasn’t the right thing to do, and I didn’t feel I had to do it, but it was close, you know, it was a close call and I was hyped up, and I was I really had to kind of like, slow it down in my mind and think about it.

01:40:11:28 – 01:40:28:25

So I wanted to bring that up for our viewers and tell you guys that story because it was and we’ll talk about it more. But an interesting thing that happened to me last week, and it was specifically relevant to our episode that we recently did in self-defense. And I wanted to point it out to everybody. So, guys, thanks so much for watching our episode of Now We Defend.

01:40:28:27 – 01:40:45:04

We have a blast every single week doing this with you guys. And I love the comments. Some of them are funny, some of them are hateful and mean but still funny. Some of them are interesting so please keep believing them. We do try to engage with the relevant ones. I say relevant because some of them are just nonsense.

01:40:45:04 – 01:41:07:08

But and again, you guys recently did an episode where we we responded to some of those comments in real time, and we’re going to continue to do that. We’re going to do those episodes from time to time. And I want to give a little teaser. Also, we are getting to the point in our podcast where we are having individuals contact us that would like to come on to our show, and we are going to start taking advantage of some of that.

01:41:07:09 – 01:41:28:17

If you think you’re somebody that has the an interesting insight into something, or you’re in a position of either your authority or your job or something that would be relevant to talk about in our podcast, reach out to Us. I’d love to potentially weigh having you on and giving our viewers some other viewpoints. So thanks again guys. Have a good rest of the week.

01:41:28:20 – 01:41:32:14

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