Criminal Justice Myths Debunked by Former Prosecutors

00:00:17:19 – 00:00:51:14

Welcome to the Now We Defend podcast. What if I told you that you have been misled on purpose? Hollywood has misled you over years to sell entertainment. Many of the things that you have been conditioned to believe that go on in the criminal justice system day to day, are just simply not true. Millions of Americans who are regularly involved in the criminal justice system believe, for instance, that if you are arrested, you have to be read Miranda rights.

00:00:51:14 – 00:01:13:24

And that is simply not true. There is a very specific set of circumstances that require Miranda, but it’s not just being arrested like we see on day to day TV dramas. This is kind of driven by those dramas, by the social media heroes and experts out there and conjecture. In a day to day conversations with people that we know.

00:01:13:27 – 00:01:39:24

So today we are separating reality from Hollywood fact from fiction, and we are going to be debunking a number of common myths that exist in the criminal justice system. And I think, and I hope that this will surprise you, but I also hope that you will learn. We want you to be armed with what to expect and how to assert your rights properly, and how to protect yourself and how to handle yourself.

00:01:39:24 – 00:02:02:09

If you ever find yourself in one of these types of situations. Knowledge is power. So let’s put these myths on trial for today. All right. Justin. As you know, you know, there’s all these myths, right? We see them pretty regularly in the justice system day to day. Our clients are always telling us, hey, what about this? What about this?

00:02:02:09 – 00:02:26:16

Are they going to ChatGPT or they heard something on YouTube? And I want to give people today a good idea of how to kind of think about these things when they find themselves in these circumstance, or to use this podcast as a resource if one of these things comes up for them. So one of the biggest myths that I’ve heard clients say, and we’re going to kind of go in some sort of hopefully order here, that makes sense.

00:02:26:16 – 00:02:44:11

But one of the biggest myths that I’ve seen is that the people think that in a case, for instance, involving like a domestic, right. This comes up a lot in domestics that victims of domestics decide whether or not to charge someone with a crime. You know, the police come out and then they say, do you want to file charges?

00:02:44:11 – 00:03:01:18

Do you want to press charges or do you not? Right. And then the victim makes that decision. And that, as we know, is simply not the case at all. No. So I’d like to start again I mentioned this. This comes up again frequently and domestic cases, but it can come up in other cases where there’s victims to. Right.

00:03:01:21 – 00:03:21:14

The police just aren’t asking people. Right. Like, they aren’t going up to people and say, oh, telling me, do you want to press charges? No, that’s not the question they’re asking. So essentially, only the prosecutor or police can make the decision on whether to charge someone here in Pennsylvania, probably 90% of the time the police are going to make the decision.

00:03:21:14 – 00:03:44:27

What are the file charges on their own? They’re not going to contact a prosecutor. There are definitely times and in more serious cases where they may want to get approved for charges or they have to do more of an investigation. But I think domestics is a is a good example of of this specifically because like you said, you know, we hear people, it’s up to them if they want to press charges or on the police asking, you know, do you want to press charges, really what they’re looking for.

00:03:44:28 – 00:04:01:06

And we’ve talked about this in previous episodes. They’re going to separate the parties, get both sides. Someone’s probably get arrested. Yeah. Whether or not they called to. We hear this all the time. Well, I just called to get them out of the house, or I just wanted him to leave. But again, with the domestics, because of how serious they can, they can be.

00:04:01:09 – 00:04:24:11

Someone’s usually getting arrested. Whether or not that was the intent of the party that called. Right. So, guys, the only individuals that have charging authority, meaning that decision whether or not to charge is the police and the prosecutors, regular citizens and society, people who become victims of crimes have zero authority to file or make a decision as to whether or not to file a charge.

00:04:24:11 – 00:04:40:24

And this might be like, well, why doesn’t why doesn’t a victim get a say in this? And I don’t want to be kind of totally nontransparent about this and say they don’t get any say, but they aren’t making the initial decision. They are not the ones deciding in the front end of this whether or not to file charges.

00:04:40:24 – 00:04:58:29

Now, are the prosecutors later going to come to them and say, hey, you know, what would you like to see happen here? Tell us what happened in this incident. Would you like to see a certain type of outcome? Are you concerned about this individual? Are you not? Has he, you know, done anything or. She’d done anything to fix it?

00:04:59:02 – 00:05:16:02

Would you like them to to see them do any treatment? What do you want to see as it relates to charges? All of these types of questions are going to come up, but it’s months down the road as the case is progressing through the justice system. It’s not like we always say on the side of the road or at the house when the police respond to a domestic incident.

00:05:16:04 – 00:05:32:10

So this kind of leads me, Justin, into kind of a very similar question. And I have clients a lot, mainly in domestics. Come say this to me. And that is, hey, the victim already told me, like, say the victim is, you know, it’s a husband and wife, right? My my wife already told me she’s just not going to come to court.

00:05:32:11 – 00:05:52:12

Yeah, right. And therefore, the charges are going to go away. Nay, nay. No, that is not how that works. So how does that work? Yeah. Big misconception there. And we talked about this kind of prepping for this. But again we see this a lot. And whenever someone comes to us and says oh well, you know either the victim told me they don’t want to proceed or the victim is not going to show up to court.

00:05:52:14 – 00:06:13:02

We want them to show up to court, especially the preliminary hearing, because depending on the severity of the charges and what the allegations are, prior criminal history, etc., like if this is a one off, if the victim shows up to court, we may actually be able to resolve it there for a reduced crime or reduced charge, or even maybe have it go away altogether.

00:06:13:03 – 00:06:38:03

Yeah. I mean, dude, Justin, this is huge because this is something I know. You say it, I say it. People, I think, understand it when they’re sitting in our office and we explain it to them. But you are absolutely on point here. Like it is so much better if the victim doesn’t want charges that they actually show up in court, because then they’re going for them, then there and for you and for and for us to.

00:06:38:04 – 00:06:58:03

Yeah. And for us and what we want. Right. So if a prosecutor has the option of hearing, I want the charges dropped or this didn’t happen this way, this is how it happened versus they hear nothing that leaves them within a huge question mark, you know, in their mind and a question mark that makes them very uncomfortable and really doing anything.

00:06:58:04 – 00:07:18:05

Yeah, yeah. Whereas, you know, if they hear from the victim, the victim is going to be able to tell them this happened, this didn’t happen and they’re going to feel a lot more of that comfort level. Yeah. And like we talked about, you know, if a victim or witness doesn’t show up to the preliminary hearing, especially if it’s the first, first time or first listing, as we call it, they’re going to or Commonwealth going to ask for a continuance.

00:07:18:05 – 00:07:41:24

And don’t think there’s a judge here in New York County or magistrate judge, and probably most other counties that if the Commonwealth requests continuance to get a victim there or a witness there, they’re almost always going to grab. Oh, yeah, 100%. So then not only do we have to go to another hearing, it gets dragged out longer. Say the person you know over that time decides maybe they do want the charges if something happens between them and the other party.

00:07:41:24 – 00:08:01:10

In the meantime, there’s a lot of variables that could really negatively affect not only our clients, but you know the victim as well. So we want the victim to show up to court. We want them to advocate for what they want to see happen. And it’s it’s much more likely that if they do, we can resolve that case earlier and hopefully at the magistrate level.

00:08:01:12 – 00:08:23:29

Yeah, I mean, I think we all know this too, like in situations that are domestic in nature, a lot of times they’re dealing with criminal charges because their relationship has something volatile happening in it at that moment or maybe long term. But as Justin just very astutely indicated, time can be a Band-Aid, but it can also be an arrow.

00:08:24:06 – 00:08:46:04

And if you are in a position where we have the victim where say, we want them from a defense perspective or where they actually are, you know, in truth, and they’re willing to go to court and say that that is far better than them not showing up. They continue the case out two more months, you guys getting two more fights, and now the victim hates you again.

00:08:46:04 – 00:09:05:29

And they’re going to change their story either back or make it worse or everything changes completely. And now you’re looking at felony charges when this whole thing would have been dismissed to begin with. So again, the moral of this story is, and this is why this is a myth, if the victim shows up for does not show up for court, the case is not going to just automatically get dismissed.

00:09:05:29 – 00:09:24:26

So please do not assume that and please talk to a lawyer, because a lot of times you can construct strategy where it’s actually far better that they do show up. They say their piece to the prosecutor, whatever that may be, and then the outcome is going to be a lot more comfortable for the prosecutor to swallow and deal with than if they don’t know.

00:09:24:26 – 00:09:52:06

And they have that question mark lingering in their mind, especially especially in domestic cases, because, as we said in our prior podcast about domestic cases, they prosecute those differently. And the cavalry usually comes out in those cases and they they’re going to have a bigger microscope on them, maybe some other types of cases. All right. Let’s go ahead and pivot here Justin, as it relates to being charged versus being convicted of a crime.

00:09:52:08 – 00:10:11:15

Right. That can have. Well first of all, the myth here is that being charged with a crime is the same thing as being convicted of a crime. And that just is a myth, correct? Absolutely. Okay. Two different, majorly different things. Very, very true. Tell me about the difference between charges and being convicted. Yep. So basically if you’re charged with a crime that’s an allegation.

00:10:11:17 – 00:10:41:03

You’re not actually convicted of anything. In fact, you’re presumed innocent until proven guilty. Yeah, that’s a staple of American law. Yes. Right. So I think one of the biggest things that we see with this, and I don’t know that necessarily all that many people exactly believe this. However, I think it’s viewed this way because of the collateral consequences that a lot of our clients, you know, we see face just by being charged.

00:10:41:04 – 00:11:08:03

They lose their jobs. There’s other, you know, issues that come up. Yeah. Duties, you know, car insurance, license suspensions. There’s there’s a lot of collateral consequences just being charged. Yeah. And I’ll tell you another big one. Immigration. Immigration. Immigration consequences for people who aren’t citizens or might have permanent residency. Or maybe no resident? No. No citizenship. Those folks can a lot of times be detained based on charges and sometimes deported before the case ever gets the court?

00:11:08:04 – 00:11:25:28

Yes. So, I mean, there is there is real world effects of being charged. But as it relates to your criminal record. Yes. If you’re charged, you’re not convicted. You can’t be punished just for being charged. Obviously, a court can set bail on criminal charges, but bail is not intended to be a punishment. I know sometimes it feels like it.

00:11:25:29 – 00:11:45:28

Yeah, but that’s not the intent. Right. So, I mean, I think that’s just, you know, debunking that myth that it is two different things. But as you very again, astutely said, there can be collateral consequences merely for charges. Yeah. And again, just to hit it home just because you’re charged, it’s not the same as a conviction, and it doesn’t mean you ever will be convicted.

00:11:45:29 – 00:12:03:21

Right. There’s a guy, you know, there’s a lot that goes into that. But yeah, I think that is something that because of what we see with people losing their jobs, immigration, etc., that there are people that essentially think, okay, well, I’m charged has the same effect as a conviction, but once you’re convicted, the penalties are much worse. Right.

00:12:03:27 – 00:12:21:19

Yeah. All right, Justin, I’m going to give you a scenario here. So I am subpoenaed as a witness in a case. I don’t want to testify, so I’m just going to plead the fifth. Okay. I see this a lot. I hear it a lot. Yeah. I constantly have people telling me I’m just going to plead the fifth. I’m just going to plead the fifth.

00:12:21:20 – 00:12:46:18

It’s all good. I’m not going to have to testify again. Wrong. This is a myth. Leading the fifth is very different from. I don’t want to testify. So when somebody pleads the fifth. Justin, what exactly what right are they asserting by pleading the fifth? So essentially, if someone’s going to plead the fifth, it’s it’s your Fifth Amendment, right.

00:12:46:20 – 00:13:14:16

Fifth amendment to the Constitution. Essentially, you cannot be compelled to provide evidence against yourself or self-incrimination. And the whole, you know, well, I’m just going to plead the fifth. I’m not going to testify, etc. really, how that works in in the real world is you are called to testify. You take the stand. And if there are questions where your answer would provide evidence against you or you would self incriminate yourself, you answer that question.

00:13:14:18 – 00:13:33:20

I am asserting my Fifth Amendment right. I’m not going to answer that question. Yeah, well, I think we just saw this on Capitol Hill. We did with Doctor Fauci, who I think over a hundred times asserted his Fifth Amendment right. And I think the little script he read from when he did it was the script that we give our clients when they were asserting their fifth.

00:13:33:20 – 00:13:49:03

And that is on the advice of counsel. I’m respectfully asserting my Fifth Amendment. Right. Period. Yeah. And that’s it. They’re going to try to beat you. They’re going to try to get you to talk just like they did. I mean, if anybody ever if anybody watch that and I know a lot of you did, you would have seen that.

00:13:49:04 – 00:14:10:05

And it was uncomfortable. It was extremely uncomfortable. But I mean, for what it’s worth, Doctor Fauci actually just kept doing what his lawyer told him to do, which was just keep saying that even though I’m sure his, his psyche was screaming. I just want to answer these questions. Right. I just want to talk. But he was given that instruction from his his attorney.

00:14:10:05 – 00:14:44:23

But again, to be clear, asserting your Fifth Amendment right is not there is no right to not testify. It is only a right to not incriminate yourself in testimony. Now, I want to talk a little bit about marital privilege here, because we hit on this in our domestic violence episode. Marital privilege is a real thing. It exists. But it doesn’t just mean, oh, we’re married, so I don’t have to testify about anything at all involving my husband or my wife.

00:14:44:26 – 00:15:11:23

And specifically, there are rules about you cannot assert marital privilege in domestic cases. Correct. So you want to expound upon that a little bit? Yeah. So this is actually something that came up when I was in the DA’s office. Tim and I were talking about a case, and I can’t remember if it was one of ours or somebody else’s, but this kind of got brought up, and a lot of people like you just said, you know, they hear marital privilege or think of marital privilege and they’re just like, oh, well, we’re married.

00:15:11:23 – 00:15:39:16

I don’t have to testify. I’ve had people come and say that to me, well, you know, we’re married, so she or he doesn’t need to testify. Wrong. Here in Pennsylvania, it’s specifically written into the rules that there is no or you essentially, you can be compelled to testify in a domestic violence case. So if you assault your husband or you assault your wife, if the prosecution calls them again, they’re going to be compelled to testify.

00:15:39:16 – 00:16:03:21

And if you refuse to testify at that point, you know, negative inferences can be drawn from that. The court can compel you to testify under penalty of perjury. There’s a number of ways that the court or the Commonwealth can, can try to get you to actually provide that testimony, but there is absolutely no right to just refuse to testify or the marital privilege does not apply.

00:16:03:22 – 00:16:21:08

Yeah, yeah. And I know you brought up Tim there. And let’s say hi to Tim real quick. Yeah. What’s up Tim. Hey, Tim. How are you doing? Oh, he’s not here. I wonder where he went. Guys, Tim is involved in a pretty high profile case right now, so he wasn’t able to attend this week. Maybe he can sneak in later if he gets back.

00:16:21:08 – 00:16:40:11

But we’re not holding our breath. We’ll see. All right. Justin, I think that was right on point. So. All right. Another myth that comes up a lot is we’ll have someone come into our office and they’ll say, the police didn’t actually see me commit this crime, so I can’t be charged with anything. They don’t have any evidence.

00:16:40:11 – 00:17:03:03

There’s no witness. Well, think about what you just said. If you believe that for a moment and think about crimes that exist out there, there’s a hell of a lot of crimes out there that the police get called to after they are committed, and people are still getting charged with those crimes all the time. So if that’s something that is that you think it is, it’s dead wrong.

00:17:03:04 – 00:17:21:27

It’s a myth. It’s inaccurate. So, Justin, let’s unpack that a little bit. Tell me about that. The police didn’t see me commit this crime, so I can’t be charged. Yeah. I think, like you just said, there’s a number of crimes. If you really think about it. You know, the police don’t need to be presently active, observing you while you’re committing the crime in order for you to be charged.

00:17:21:28 – 00:17:45:17

Retail theft is probably the biggest one that I, I that we see in essentially what usually happens with those in a lot of stores, even in the moment where these retail thefts are being committed, they’re not calling the police. Some stores were actually be watching a video of someone, you know, that they think is stealing or under ringing, etc., and they’ll just like spotting another person and catch them as well.

00:17:45:20 – 00:18:04:03

But I’ve seen some of the bigger stores, you know, target, Walmart, etc. especially if someone’s going in and doing it a number of times, they will actually build a case. Right? And, you know, observe you coming into the store or other stores in the area over a period of weeks or months. Yeah, multiple retail thefts happening by the same person.

00:18:04:04 – 00:18:24:14

And they’re building it up over time. And then they might call the police eventually. Yeah. And that again, that can be charged a lot of different ways. Right. I mean, sometimes they compile that into one retail theft charge and can actually aggregate the, the gradation by the amount of money. Or they can charge multiple offenses over a period of time.

00:18:24:16 – 00:18:45:00

But yeah, in that scenario, like the police might eventually watch a video and watch someone in the past on a recording commit a crime, but they’re not watching it happen in real time. And frankly, in that type of a case, the video is really the best evidence, right? And that’s what’s going to get played in court. That’s what the jury is going to see if you go to trial and all that stuff.

00:18:45:00 – 00:19:13:15

But some other some other crimes that are frequently not witnessed by police would be your things, like your violent crimes. I mean, unless it’s violence against the police officer themselves, usually, you know, your domestic cases that are violent, roadside violence, you know, road rage type situations, even just bar fights, like none of that stuff gets witnessed by the police, but they get called out to it and they’re they’re charging people and arresting people all the time.

00:19:13:21 – 00:19:35:17

In fact, sometimes they actually arrest them. As Justin was saying months or days later after they build an investigation, build a case. And this isn’t just retail theft. There’s other things in other crimes that they need to sometimes investigate. Homicide is another one. I mean, very rarely is a police officer watching someone kill someone else. That would be a pretty absurd, but I’m sure it’s happened.

00:19:35:20 – 00:20:03:14

Property crimes is another big one. You know, you have things like criminal mischief, damaging property. I mean, those things are usually done in secret, sometimes not even on camera, but through investigation and maybe statements of interest and witnesses, etc. they can figure out who might have committed that crime. You mentioned retail theft. Another big one that comes up a lot is things that involve like digital banking, like white collar crimes.

00:20:03:16 – 00:20:31:16

These types of crimes are obviously committed over long periods of time. There’s huge amounts of many times forensic digital evidence involved with that. And the police are not witnessing any of that happening. Of course. Now let’s talk, Justin, about crimes that the police do frequently witness. Okay. And before we jump into that, I did want to tell you guys that I actually looked this up because I was curious about what, like, the general percentage across the entire country is of crimes that are not witnessed by the police.

00:20:31:16 – 00:20:50:21

And what the statistics were telling me, and I did a few different ways to look into this, was it’s approximately 80% of crimes are not actually witnessed by the police happening in real time. So it’s more than more than half. Way more than half. So yeah, Justin, tell me some crimes that are kind of standard ones that the police actually do witness.

00:20:50:24 – 00:21:13:09

Yeah, the biggest ones duties, traffic offenses. If they stop it, most of it will arise out of a traffic stop as well. You know, they may find drugs, guns, other things inside the vehicle after the traffic stop resisting arrest, obviously, or assault on an officer because they’re right there. Right. Well, the victim is the cop in that situation.

00:21:13:10 – 00:21:37:06

Yeah. I think in some probably some bigger cities, we don’t really see it too much around here. I mean, I’ve seen it a few different times where, you know, they’ll be like a big fight at a school or some type of public event. You know, the police may witness that. Right. But, you know, most of the crimes that we get and that police charge, again, they’re not witnessing, right?

00:21:37:09 – 00:21:51:24

Yeah. I mean, I think what you’re kind of talking about there is like, like big events where there’s already like police presence, like security, for instance, or something like that, where they’ve hired law enforcement to, like, be there, just generally to keep the peace. Yeah. I mean, sometimes they’ll actually witness. Well, they usually do see something happening. Yeah.

00:21:51:26 – 00:22:07:28

Like a big one here in York is is definitely like the hot rods. Yeah. The hot rod, the York fair, York fair, York fairs, another one. You know anybody who’s not know about the York Fair, if you’re somewhere else in the country and maybe you can fact check this for us. But the York Fair claims to be America’s oldest fair.

00:22:07:29 – 00:22:26:20

I don’t know if you feel like every every fair. Everyone likes that. Yeah, you’re probably right. Like the world fair, you know? Yeah, but it’s an event here in York, and it’s pretty cool. And, you know, you get a bunch of those. What always strikes me as dangerous carnival rides into town and a bunch of, like, greasy food and just just stuff that, you know, but it brings thousands of people out.

00:22:26:21 – 00:22:47:26

Yeah. And I actually remember September 11th when it actually occurred in 2001. I was in high school at the time, and the York fair was going on. Oh, wow. And I remember I, we back then, we, we always had a half day for the York fair day. And by the way, the York fair goes on for like 1 or 2 weeks I think every year.

00:22:47:26 – 00:23:08:09

But there was always like one day, I don’t know what day of the week it was that we would always have a half day of school, and that the day was September 11th. We had the half day, and I was planning to go to the York Fair with my friends. We all did that shut down. Well, yeah, well, I remember I don’t know if it got shut down or not, but I remember my mother would not let me go because she was afraid, given what was going on.

00:23:08:11 – 00:23:27:10

So they were just we didn’t know what was happening, you know. And she didn’t want me in any public place at that point. So I missed the York Fair that day. But yeah, but yeah, like I said, it’s a pretty big event. The fair hot rods, hot rods we have here on route 30 here in York, I mean, people will set up what chairs.

00:23:27:15 – 00:23:44:21

It’s kind of weird, actually, but it’s also kind of interesting and unique to this area. I’ve never seen anything like it before coming here. So like the first year, I think I was in the DA’s office and was was going to work or leaving work one of the days. I’m just like, what is going on here? Yeah, there’s people like lined up along the highway sitting in like lawn chairs.

00:23:44:22 – 00:24:04:02

Yeah, like and I just so happen to be on call as the call da. And I was getting calls like, all night, like what is going on. Well, because because they got a huge police presence there and people are doing burnouts. They’re racing there. People are getting in fights along the highway. You know, it’s usually during the summer, I think, and maybe the spring.

00:24:04:03 – 00:24:22:26

I think it’s like late June, early July. Yeah. I just I think it’s usually hot out. Yeah. And you know how people get when it’s hot out and they’re sitting along the highway and fumes and drinking. Yeah, but it’s kind of neat because you drive when the hot rods aren’t out yet, but everyone’s ready for them. You’re driving home from work and it’s like you have an audience, like for like a long stretch of the highway.

00:24:23:00 – 00:24:47:24

I’ve always found that kind of interesting. All right, here’s another big myth. Guys. The police cannot lie to you. That is incorrect. And in fact, I would say maybe with some frequency they do, especially when they’re interviewing you in, like, maybe a major case or something. And they have you at the police station and they’re interviewing. This is usually where we see this.

00:24:47:24 – 00:25:10:00

I don’t really see this a lot like on a vehicle. Stop, know where the cops are, like coming up and being like, I clock do you going 100 miles an hour? And the person is like, I was doing 60. Yeah. No, no, you don’t really see that. That’s not there’s no point in like, lying about that, right? But usually when the police are going to lie to you, which has been litigated over and over, up and down to the United States Supreme Court, and it has been authorized and permitted by law.

00:25:10:03 – 00:25:31:06

It’s usually going to be in a major investigative case where they’re trying to invoke, like a confession or, you know, get some piece of evidence or just get you to tell the truth. And a common example of this would be, hey, we got we got your buddy Bob over in the other room. We’re interviewing him, and he just confessed to this, and he told us that you were involved.

00:25:31:06 – 00:25:49:27

And people who are under interrogation for a long period of time start sweating and they’re like, oh, shit. Well, Bob’s saying it. Yeah. And maybe I gotta say it, you know, that’s something that we actually do see in movies. That is true is true. Right? And that actually does happen. It definitely does. Yeah. And yeah, I mean, it kind of plays into the next one that will will go into.

00:25:49:28 – 00:26:16:23

But you know, there are people well, oh, they lied to me or they were trying to trick me. I mean, yeah, they’re trying to get a confession or, you know, get an answer to something. I wouldn’t say it’s the most common thing in the world in the sense that, you know, it’s definitely happening every day somewhere. Yeah, but most cops aren’t going out there, like you said, especially on traffic stops or anything like that and just making stuff up to try to get you to say something right.

00:26:16:24 – 00:26:39:14

It’s definitely more of a tactic. Right? And again, again, I’ve said this before here in York County, Pennsylvania, and I mean even surrounding counties. A lot of the cops are real decent. Like they’re not out there. Most of them, actually, I would say by and large, a lot of them are very decent. They’re out there just doing their jobs, just trying to get home to their families at night, you know, and, you know, collect a paycheck so they can raise their family but also do their job.

00:26:39:15 – 00:27:00:10

Yeah, right. And that’s fair. And that’s how it should be. Now there are some bad actors. There’s always going to be bad actors anywhere you’re at. And that’s not a knock on anybody individually. But sometimes there’s sometimes bad actors that aren’t even intending to be bad actors. But if they do lie to you, they’re not actually being technically a bad actor under the law, because that is permitted.

00:27:00:10 – 00:27:20:08

So some other examples of this are, you know, you’re down at the station. Again, this usually happens in a station interview type of thing. You know, we found some cocaine in your vehicle. We searched it. We ran the dogs around. They were alerting to it just to try to get you to start confessing and maybe get give you consent to search or consent to go to the vehicle further or something like that.

00:27:20:10 – 00:27:42:08

Your fingerprints came back on the weapon. We’re going to talk about fingerprints a little bit. But Justin, in preparation for this, we’re talking about how I don’t think we’ve ever actually seen a fingerprint case, or maybe just every once in a while, I had one case where there’s a fingerprint and it was in blood. It was the attempted homicide, and the guy got messed up and essentially they stole his car, dumped it.

00:27:42:08 – 00:28:02:27

But on the I think it was the driver’s side window, wherever the guy that the defendant grabbed it or went to shut the door, they ended up getting a fingerprint. That is the only time I’ve ever seen a fingerprint. I’ve never seen a fingerprint pulled off a gun. Yeah. And again, guys, we’ve done thousands and thousands and thousands of cases on both prosecution and defense side of this.

00:28:02:27 – 00:28:25:03

And I think part of this is a product that science has advanced beyond the need for fingerprints. I do think that maybe before our time, fingerprints were a bigger thing for DNA. Yeah, the science was a bit bigger, maybe in the 90s and 80s and what I’ve seen, my experience with the DNA versus fingerprints. We want to get DNA off a gun.

00:28:25:05 – 00:28:37:12

Well, I shouldn’t say we prosecutors in the Commonwealth want to get off a gun and send it for testing, and then get a buccal swab from whoever they think it was. Then that for comparison.

00:28:37:15 – 00:28:56:24

It’s such a delicate process. And as we know. And, I mean, we could do probably three episodes on DNA, and we’re not even experts in it, but it breaks down very quickly. And the more things that are touching the areas, especially the can be contaminated, the grip. Yeah, yeah. And if you’re trying to pull fingerprints off, you’re pulling DNA off.

00:28:57:02 – 00:29:18:18

Right? So in my experience, especially when I was in the DA’s office, if there was a question of should we try to get prints or DNA, it was a every time because you don’t want to destroy or contaminated DNA, which is, I think, probably definitely more scientifically accurate, although they’re both pretty accurate, to be honest. But I mean, the numbers you hear in cases are just astronomical.

00:29:18:20 – 00:29:40:18

It’s like more people than exist in that world. Like the chance I can’t even say what the numbers are because I’d basically be like, how many zeros is that? And they’d be like, you know, 39, right? Like, I don’t know. I don’t even know what that number is. Yeah, I don’t know what that means. So I mean, you know, they never say to a complete 100% certainty, but it’s pretty much the phrase is it’s it’s kind of more likely than not.

00:29:40:21 – 00:30:04:26

Or just like the the statistics shows that it’s this many times more likely the DNA originated from this person and like two individuals than if it didn’t. I don’t know any other person. It’s kind of confusing, but the way the experts do it. But I think, I think most people, most adults in community now kind of have a pretty good comfort level with DNA is pretty damn accurate.

00:30:04:27 – 00:30:19:00

Yes. Like so, you know, it is what it is. So that’s another thing that the DNA actually comes up a lot. And these whole like the police can lie to you thing, like they can tell you like we found your DNA on the scene. We found your DNA on the victim. We found your DNA, you know, on the gun.

00:30:19:02 – 00:30:35:21

Yeah, that type of thing. And guys, think about guns. Like, I mean, pretty much every gun I’ve ever handled or known or seen. That grip is not like eggshell. Smooth. Yeah. Like it’s textured. So your skin cells are going to get caught in there. And it’s very easy to pull DNA off of that. Well and they’re also swiping the magazine.

00:30:35:21 – 00:30:56:21

They’re swiping bullets. If there’s if there’s rounds in there. Right. Because you’re going to push them in, you know all that stuff. Yeah. Yeah. So all right, within the same vein, the next myth would be that the police have to tell you if they’re undercover, if you ask them. Yeah. So this would be where you say to a police officer you’re a cop, right?

00:30:56:21 – 00:31:13:00

You have to tell me if you’re a cop now, a favorite one. Yeah, I see it in so many movies, and it just always cracks me up. Right. And that’s not a rule. That is not a rule. The police do not have to tell you if they were uncovered. I mean, think about the absurd results that would come of that if that was a rule, right?

00:31:13:03 – 00:31:39:17

I mean, I just think about like all of the, like, major undercover crime syndicates that have been infiltrated by law enforcement, whether it’s federal law enforcement, FBI, ATF, absolutely. In these, you know, major gang situations or even even back in like the 60s with the Mafia and all that. Right. Where it would be absurd if this guy could just be exposed and he goes, yeah, you guys got me.

00:31:39:17 – 00:31:55:24

I have to admit it. You know, it’s the rule. It’s funny, I had a I had a kid case. It was a couple of years ago, and it was just really funny to me because it was one of the first ones that I had where there was actually video from, like inside the car, and they used the CI to set up the deal.

00:31:55:24 – 00:32:08:24

But the undercover is the only like he’s the one that went right. He went to do the by. So he picks the guy up and they have the camera in the car, you know, wherever it was. And he’s trying to do the deal. And then the guy just like looks over at him and he’s like, you’re not a cop, right?

00:32:08:24 – 00:32:24:26

And he’s like, no. And he’s like, oh, okay. Like no hesitation. He’s just like, all right. You know, does the deal. It’s all on video. And I’ll just never forget that one. Because like I said, I used to see that in movies. You still see it in movies, right? Yeah. It was just cracked me up. I never calling the guy and being like, how many times?

00:32:24:26 – 00:32:40:14

Like how many times does that happen? He’s like, it actually happens. Like way more than you think. It’s not like super common. But every once in a while we’ll get one. Yeah. And another. That’s another thing in the movies that is kind of real. Like it is cops. Like, do they? They just don’t have to tell you. They don’t have to tell you.

00:32:40:15 – 00:33:01:03

Yeah. And they’re not going to tell you. No, no it’s not. Absolutely not. All right. Yeah I always like that. Yeah. All right I mentioned this next one in the earlier opening to this episode that the police have to read you Miranda rights, which I hope we all know what that is. But, you know, it’s your right to remain silent.

00:33:01:03 – 00:33:27:26

Anything you say can and will be used against you in a court of law. You have a right to an attorney, so on and so forth. Most people, I would say, by and large, 99% of people that I interact with who have never been through the justice system before and had ever been told this think that when you are arrested, that is the triggering event for you to have to be bred Miranda rights and that is 100 false.

00:33:27:27 – 00:33:56:12

That is not accurate. Will you see it in 100% of movies on TV? Yeah, it’s because it’s something that triggers something everybody knows in their mind. And it’s it’s good TV, it’s good drama, and it makes you feel like it’s it’s real. But that is not accurate. There are two specific required triggering events that require Miranda rights to be read to you, and that is if you are in police custody and you are simultaneously being interrogated.

00:33:56:20 – 00:34:16:18

Interrogation doesn’t always mean a spotlight on you in a room, obviously, to police station. It could obviously, that is interrogation where they’re asking you questions, but it’s merely if they’re going to put you in police custody and then they are going to question you. Okay. Now there are different types of police custody. There’s different types of police. I shouldn’t say custody.

00:34:16:18 – 00:34:31:28

I would say interactions with the public. Right. And being in custody is one of those interactions. It would be the most advanced interaction. Yes. But I want to turn to you, Justin, to tell me a little bit about the other types of police interactions with the public where you’re not in police custody, even though you might feel like you are.

00:34:31:29 – 00:34:50:29

Absolutely. So tell me about that. So, like you said, there’s basically three main types of police interactions. There’s mirror encounters which trying to think of a good way I would say an example of that would be say that you’re in a parking lot outside of the grocery store, and a police officer just walks up to you and said, hey, how’s it going?

00:34:51:02 – 00:35:07:14

Right. And they may ask you a couple of questions. How about walks up and says, what are you doing? Yeah, I mean, that’s that’s okay too. Yeah. You know, that just you don’t have to answer that question. You do not. Yeah. And we’re going to actually talk about interactions with police. We’ve said it in a ton of episodes before, but yeah, I mean, that’s a great example of a mirror encounter, right?

00:35:07:14 – 00:35:23:12

This would be it’s what it sounds like. It’s a mirror encounter. It’s just like I could walk up to you in public and say, hey, how’s it going? What are you up to? What’s going on? Yeah, the police can do the same thing. And even when they’re on the job, even when they’re in uniform, or even when they’re undercover, they can come up to you and say, hey, how’s it going?

00:35:23:14 – 00:35:38:24

What are you doing? What’s going on? They can ask you pretty much anything. You are not in police custody at that point. You are free to leave and it might feel weird to leave. You know, it might feel weird to be like. All right, this cops talking to me, I’m just going to, like, mosey away. But technically you can.

00:35:38:25 – 00:35:54:11

Yeah. You know, you’re not underestimation for anything. I think people just inherently get a little bit freaked out. If, you know, a cop walks up who does? Even if you’ve never. Especially if you’ve never been in trouble before. I feel like those are the people that kind of freak out the most. Yeah, where it’s like, oh my God, I’ve never been in trouble before.

00:35:54:12 – 00:36:07:05

Like what’s going on? But yeah, if an officer say you’re just minding your own business somewhere out in public, and officer walks up to you and said, hey, what are you doing? You just don’t have to answer. You turn around, you can walk away. Yeah, you can pretty much do anything at that point. Smile at him. You can wink at him.

00:36:07:06 – 00:36:31:06

Yeah, I think you can even blow a kiss at him. I don’t know about that. Depends on. Depends on the officer and who you are. Maybe. But I wouldn’t recommend that the the next would be a custodial detention. Yeah. So that’s between a mirror encounter and basically being in custody. I think a way or an example to give of that would be you’re on a traffic stop and they suspect that you might be DUI.

00:36:31:08 – 00:36:48:23

Yeah. So they’re going to ask you out of the car. They’re going to ask you some questions, ask you to do some tests. At that point, you’re technically not free to leave, but you are not under arrest. That’s that’s I think, the best example that we can give that most people would understand. Yeah. No, that’s, that’s that’s the prime example.

00:36:48:27 – 00:37:11:18

That’s a great example because that’s one that I think people actually might find themselves in. Right. And that is one that feels like you are actually in police custody because you and this is kind of like in a way, it’s kind of bullshit in my opinion, because I think any random person in society, you pluck them up if they are pulled over on the side of the road, they do not feel like they are not in police custody.

00:37:11:20 – 00:37:30:22

Right? They feel detained and they are detained, but they feel detained to the point that they are their liberty is being restricted at that point. Right. And I mean, technically it is. It is, it is. Yeah. But in the eyes of the law when it comes to Miranda rights, which is what this myth is about, you are not in the the next step, which would be police custody.

00:37:30:22 – 00:37:52:21

You’re not in handcuffs. You are not arrested. You’re not in the back of a police car. You are not on your way to the station. You’re not at the police station. You are in public on the side of a roadway, and a police officer has pulled you over legally or illegally, but they are interacting with you now. Lights and possibly sirens also had gone on like kind of a just they’re investigating whether or not a crime has been committed.

00:37:52:21 – 00:38:08:26

Yeah. Right. So they don’t know at that point. And that’s why you’re not free to leave. But like you said, you know, it is kind of BS that at that point 99% of people, they feel they feel like they’re in custody there in custody. Yeah. Because they’ve been told most of the time they’re told they’re not free to leave.

00:38:08:27 – 00:38:26:04

Yeah. Well and they’re technically not and they’re not. Yeah. And they’re, they’re interacting with the police, especially on DUI stops. Like the cops are asking, how much do you have to drink tonight? Right. Where are you coming from? Where will you submit a test? We’ve hammered this home. You don’t have to respond to questioning by the police even though you’re detained.

00:38:26:05 – 00:38:44:28

So I do want to. I do want to drop that here again for people. Right? Even though you’re detained, you are not required to answer questions by the police. You are required to provide your documents. You are required to, you know, roll your window at least partially down or down so you can interact with the police officer. You are not free to leave.

00:38:44:29 – 00:39:11:12

So license, registration, insurance, those types of things. But beyond that you don’t have to answer questions. Yeah okay. And you can say to them and I want to actually talk about this in a later myth, you can say to them and here’s the here’s the ticket, guys. You can say to the police, you shouldn’t always. But there are times to do this, many times where you can say, I don’t answer questions here, I don’t answer questions, and you can repeat it if you have to.

00:39:11:14 – 00:39:29:22

Now don’t be rude. Don’t be mean. Don’t be spitting and yelling and screaming. Yeah, I don’t answer questions. And I know you mentioned this when we were talking about this episode that, you know, you you see videos online of people doing this. Yeah. And there are ways to do it. Like you just said, you calm, polite, respectful. You can keep repeating yourself.

00:39:29:23 – 00:39:50:20

Officer me get upset. Yeah. Nothing you can really do about that. Yeah. But if you start getting upset, right, it just escalates everything else exponentially. Yeah. And so, you know, if you’re going to take that position like you said. And again, we’ve hammered this home in so many episodes. Just be polite. Yeah. Yeah. Absolutely. Okay. All right.

00:39:50:20 – 00:40:18:04

I think we’ve done well on that one. Yeah. Let’s move on to the next myth. So the next myth that we see with some frequency is the officer has made a mistake, maybe one mistake in the case. And that means my entire case is going to get thrown out. And while that does mean that sometimes it depends on where the mistake happened, right when it occurred in the interaction, what it was exactly, it could mean that.

00:40:18:04 – 00:40:33:27

But by and large, I would say probably more than 50% of the time, it doesn’t mean your entire case is getting dismissed. It might mean a certain piece of evidence might stay out, or might not be admissible through a suppression. But that doesn’t mean everything else is out unless it is fruit of the poisonous tree type of stuff.

00:40:34:03 – 00:40:51:17

I think that’s definitely going to be the the exception, not the norm, that the whole case gets thrown out. Right. So let’s let’s use an example. Let’s go off like Miranda Rights. We were just talking about that right. So let’s say you are in police custody and you are being interrogated. So those are clearly there. And the police officer did not read you Miranda rights.

00:40:51:17 – 00:41:08:21

Okay. So your attorney could go to court and file a motion with the judge and say, judge, I’m asking that you suppress every statement my client made from the moment he was in police custody and was not read Miranda rights. And you’re probably going to win. Okay. Yeah, but does that mean everything else in your case goes away?

00:41:08:22 – 00:41:30:04

No, just your just your statements. Just your statements. And then if they end up reading you, Maranda, at some point later and you keep talking, those statements are coming in. Right. So it can kind of refresh it. Yeah yeah yeah yeah. And I know that there’s there’s case law out there that talks about you know, if if you read someone Miranda and they declined to speak with you or they ask for an attorney.

00:41:30:06 – 00:41:51:28

Depending on there’s a number of factors, there’s I think 6 or 7 factors that, that the court will look at essentially. Does that person then have to be Miranda again prior to, you know. Yeah. When is it restart. When is it refresh. So there are definitely, you know, some factors and things that the court will look at if you ultimately assert your Fifth Amendment right.

00:41:51:28 – 00:42:14:11

And then or after being read, Miranda, I should say. And then later down the road, you know, they read you, Miranda, again and you either decide to answer questions or, you know, something else happens. It can affect all of those scenarios. There’s a few different things that would go into it. Yeah. I mean, generally speaking, though, if you are in a police interrogation and you do assert your right to counsel, whether they read your Miranda or they didn’t yet.

00:42:14:12 – 00:42:33:16

Yeah. And you say, I would like to speak to my lawyer. They are required to stop questioning you. And if they continue to press or continue to try to get you to say things, that is that is very easily suppressed information. And one of the things to if they read you, Miranda, and you assert that. And then one of those factors I was talking about, it can be coercion.

00:42:33:17 – 00:42:56:10

Right. So say you assert that and they continue to question you even though they’re not supposed. And then it goes on and on. And then later they read it again. You can be so coerced at that point that those statements could still be surprised. Yeah. Yeah. Absolutely. Yeah. I mean, but guys, the kind of the moral here is that courts are regularly limiting the error or the mistake to a specific, individualized piece of evidence and not just the entire case.

00:42:56:11 – 00:43:17:09

Now, an example of where the entire case would probably have to be thrown out is if the mistake that the police officer made, let’s say, like a vehicle stop was the vehicle stop itself. The officer didn’t have probable cause or reasonable suspicion, which we unpacked in our prior episodes. Very detailed. I would suggest going back and listening to those if you haven’t.

00:43:17:09 – 00:43:37:14

But if he doesn’t have probable cause or reasonable suspicion and they stop you. And there was the error. Pretty much everything else that happens after that is not coming in because it’s fruit of the poisonous tree, you know? And again, I think Tim was the one who frequently talked about the fruit of the poisonous tree. Yeah, yeah, I have Tim.

00:43:37:16 – 00:43:55:10

Yeah, yeah, there he is again. When one of my first actual suppression wins as a defense attorney on my first round of doing defense was, I told you about this, and I can’t remember if I talked about it on one of the previous episodes, but it was over in Adams County. Guy gets pulled over for tint, ends up getting a DUI.

00:43:55:15 – 00:44:19:11

We filed suppression based upon the fact that the stop was bad, because just because you have tint on your car doesn’t mean that they can automatically stop you. There’s case law out there that if the officer can see through essentially the back window, through the front window, see the people inside, stopping that person for a tint violation is not okay.

00:44:19:12 – 00:44:42:06

Yeah. I mean, that that comes down to some details like vantage point to like where the officer is and things like that because. Yeah, right. But most times, although some people do. Most times people don’t have their windshield tinted. Yeah. Although people do sometimes. But again like I agree with you that there is specifics there. But a lot of times when I see tint violations, it’s nighttime.

00:44:42:12 – 00:45:04:14

You know, it’s already hard to see in the car. Well I’ll give I’ll put it. You can do a caveat to that because it was the middle of the day. It was sunny. So conditions were good for this. We’ll put it that way. But yeah, at nighttime, I mean, even if you don’t have very dark tint, if the officer can’t see inside the vehicle that I think he could articulate, you know, he had to stop you for a tent violations.

00:45:04:15 – 00:45:20:05

And then as we know, there’s going to be ten other things that happen after that. That’s why we get involved. Yeah, but this this guy was just funny that we had that. And I filed the motion and this guy ended up selling the car, but he took the tin off the window off like the side window. And we actually brought in court.

00:45:20:05 – 00:45:34:08

And I introduced just the tint as an exhibit. And the prosecutor’s like, I don’t think you can do that. And the judge is like, he’s got a sticker on it. Oh, you did tell me about that. Yeah, I didn’t. I was like, yeah, that’s the tin I pulled right off. And the judge ended up suppressing the entire stop and his DUI got thrown out.

00:45:34:08 – 00:45:55:28

So. Right. I would say again, that is definitely not the norm. Yeah, as definitely the exception. Little caveat on tent cases, guys. I’ve had a few cases. I don’t know if you have Justin or not, but involving tent where I’ve had coughs like cite people, charge people with other crimes or whatever. And like you, in that case, I had my guy or this has happened to me probably 2 or 3 times actually.

00:45:55:29 – 00:46:12:22

Like actually just take the tin off, show up at court cars in the parking lot. We all walk out and look at the car, no tent. And the cop goes, all right, no harm, no foul, and we just drop everything. Yeah, and it’s not going to happen as serious, serious case. But like in, in kind of like menial stuff, sometimes the cops will just play ball with you.

00:46:12:23 – 00:46:28:23

They’ll be like, dude, it’s you know, I’m cool with that. Here’s a good one to go with that too, is yeah, people come into us and I know you’ve heard this before. They’ll get stopped for tint. Got a DUI and the cop doesn’t charge with the tint violation. And they’re like, how can they do this, right? Oh, they didn’t charge you with the tent.

00:46:28:24 – 00:46:46:10

They didn’t charge me with why they stopped it. Yes. Yeah. Yeah. That’s actually a good myth. Yeah. Not on our list, but let’s talk about it. Yeah. Just just thought about that. Yeah, that’s a great one because that happens. Let’s okay. So let me kind of phrase this myth for you. The police officer has to charge you with the original reason that they stopped you.

00:46:46:10 – 00:47:02:27

And if they don’t, they can’t charge you with anything else that is incorrect and frequently doesn’t happen. I mean, I think that happens. That’s probably. Yeah. I mean, no more than the exception, honestly, especially in DUI cases. Yeah, I see yeah, I see a lot of DUI cases where the original reason for the stock is a traffic violation.

00:47:02:28 – 00:47:25:04

Yeah. It’s just going to be like a tail light out. Yeah. And it’s not even charge. They just charge the first fence DUI general impairment. And then if there was blood, whatever tier they fall into, there’s no actual traffic site citations or charges. And if you go into court and you argue that to the judge, not only are you going to look foolish, but they might add the charge just to spite you at it, right?

00:47:25:05 – 00:47:42:08

Right. So you would really be walking yourself into more charges. But yeah, for me, the amount of people that I’ve had over the last six months with DUIs that that have kind of brought that up in some. Yeah, shape or form, it’s kind of been surprising. But then the more that it happens, it’s just very easily explained to people.

00:47:42:12 – 00:48:00:18

They don’t have to. Yeah. I mean, I think once they hear from from somebody, a lawyer, you know, it’s in this a lot. And you explain that to them, they’re like, okay, well and say they’re, they’re driving with a suspended registration or no insurance by the officer, not then citing them for that. Even if they get a DUI that’s saving them from additional suspensions.

00:48:00:20 – 00:48:21:16

Yeah. And I actually had this come up in kind of a converse way. I went to court recently on a DUI case where the guy was cited with all these traffic violations, and I asked the prosecutor and the police officer to kind of like, throw my guy a bone and get rid of all those traffic violations and included no insurance, which was a license suspension.

00:48:21:16 – 00:48:35:10

It included speeding tickets, which is points, things like that, that were had those indirect consequences that I just wanted to avoid down the road. And they were gracious enough to say, yeah, we’re going to drop all that right after the hearing, my guy goes up to me and goes, oh, well, now they can’t prosecute me for the DUI, right?

00:48:35:11 – 00:48:51:20

Was that like a trick? And I’m like, I had to, like, think about it for a second. And I was like, being serious. Knock knock knock knock on. Are you all in there? Yeah. And he was serious, and I was like, no. You know, that is. That’s not how that works. It was a tactic. Yeah. To save you a bunch of money.

00:48:51:22 – 00:49:09:11

Exactly. Suspensions. Yeah. And once I explained that to him, he’s like, okay, thank you for doing that. But at the same time, I had to kind of explain that to him. And I also explained to him in that same discussion that they can add those things back at any later point, up to trial if they want to, literally at trial.

00:49:09:12 – 00:49:31:09

Yeah. So if we were to file like a silly motion that was like, oh, we got you. Yeah, they would just be like, no, you don’t. And we’re going to go ahead and add those back. I remember, I remember I mean, I know we had a lot of cases when I was still in the DA’s office, but you know, good attorneys I think in those types of situations, especially at a prelim and your guys done stuff, they’re working on it.

00:49:31:09 – 00:49:48:00

If you would have came to me or another attorney would have came to me in that situation and like, hey, can we get rid of some of this traffic stuff? Sure. Yeah. Like, right. That’s not what they’re worried about. No, it’s not the meat. You know, they’re worried about the main charges. And, you know, a lot of times they will throw you a bone.

00:49:48:02 – 00:50:05:05

They will help your guy out a little bit because it’s going to result in a plea a lot of times to the charge they want, you know, but they gave your guy a little something. They didn’t give them extra fines and suspensions. It helps us out to a lot. It goes a long way with our clients. You know, it’s like, yeah, yeah, because it allows us to do something like real at that moment for our clients.

00:50:05:06 – 00:50:31:02

Small little win. Their small win. Yeah. And you just kind of chip away at the chisel and. Yeah. All right. Next myth. The police always need a search warrant. Okay, this is not correct. Just like every myth we’re going to talk about today, because it’s a myth. And there’s also kind of a myth within this myth that if you don’t consent to a search, that you must be hiding something.

00:50:31:02 – 00:50:54:17

So just as you know, we tell people all the time that you absolutely have the right to not consent to searches and many times should exercise that right merely because it’s your right and they don’t have the right to invade your privacy and search your car. Now, does that mean they won’t get a warrant? Absolutely not. They can still go and do that, but they don’t always need the warrant.

00:50:54:17 – 00:51:14:16

And there are some exceptions to the warrant and needing the warrant. So tell me about those possible exceptions. Yeah. So obviously if you consent they don’t need a warrant. Yeah. But like we just talked about what some of the, the Miranda stuff. And so before you move on there that that kind of goes to my point. Like I think people think if I don’t consent, it’s going to look like I’m hiding something.

00:51:14:16 – 00:51:31:14

So they then consent. But nothing in the law like says, We’re going to like hurt you more, charge you with something more because you didn’t consent. Yeah. No, that’s not how it works. Yeah. So don’t consent. And that doesn’t mean you’re hiding something. And if you do consent, they are going to find whatever you don’t want them to find in your car.

00:51:31:15 – 00:51:56:29

Yeah. And going back this kind of plays into the Miranda thing. And the police can lie to you like people think that. And officer can say that. Well, you must be hiding something, right? Yeah. That doesn’t mean you have to consent, right? I don’t answer questions. You know, just just keep it simple. But some of the exceptions or exceptions to the warrant requirement, exigent circumstances, things that are in plain view in automobile search, that is an inventory search.

00:51:56:29 – 00:52:17:08

So say they’re towing your car. Police departments and the state police here all have policies on that and what they can and can’t do. And then search searches incident to arrest. Yeah. And I kind of want to unpack these each individually because we know what they are. We see them a lot. But they don’t happen in every stop.

00:52:17:09 – 00:52:41:17

Right. But when they do happen you probably should know what’s going on. Right. So let’s talk first about like an inventory search. Right. An inventory search. And we did talk about this in a prior episode as well, is a situation where you are being essentially arrested, taken out of your vehicle or off the side of the road. You are not staying with your vehicle and your vehicle is being towed by probably a local tow department.

00:52:41:18 – 00:52:54:18

Now the police are going to call the local tow department of departments going to come out. They’re going to tow your vehicle, hook it up, take it to their local tow yard, and it’s going to sit there and you want to get it out as quick as you can, because every day goes by, you pay tow fees and storage fees.

00:52:54:18 – 00:53:21:04

But the bottom line is before they tow your vehicle, as long as they have and they pretty much all do policies about this internally within their police department, they will search your vehicle because they want to make sure that they are inventorying. Inventorying. Is that a word I don’t they are taking inventory. There you go of everything in your vehicle because there are situations.

00:53:21:04 – 00:53:39:29

And the whole reason this even came about is, you know, blaming the tow truck driver for stealing all that stuff in your trunk that was yours. And I used the extreme example always, if you have ten gold bars in your trunk, you know, you’re, you know, and they don’t inventory your car. And then the tow truck driver sees that you’re going to be pretty pissed off when you get back to your car and your ten gold bars are gone.

00:53:40:02 – 00:54:01:18

At like $0.70 worth of change in my older. But what we know is a lot of times the inventory search leads to I found a gun, I found drugs, and will they pause sometimes at that point and then get a warrant? I think a lot of times. Oh, man. At this point here in York County, I think all of the departments, if they’re doing an inventory search and find anything, they are stopping that and getting a warrant right before they go further.

00:54:01:20 – 00:54:22:26

Yeah, I haven’t seen yeah, it’s been a couple of years since I’ve had a case or saw a case where they found something during an inventory search and kept searching without getting a warrant. I think it’s almost the policy of every department at this point, at least here in New York County, that if they’re doing it inventory, search and find drugs, guns, anything like that, they immediately stop, get a warrant, and then we’ll continue after that.

00:54:23:02 – 00:54:41:20

And they, of course, say in the warrant that I was doing an inventory search, I came upon this item that is patently, obviously illegal, and I want to have the protections of getting a judge to look at this and make sure I can get further into the vehicle at that point. Not that thing necessarily have to in all situations, but I think it’s just best practice.

00:54:41:21 – 00:55:03:12

Why? Why not cover yourself? Why not? Yeah, it’s it’s sire. I mean, for us it’d be like maybe don’t, but yeah. Yeah. No I think most, most departments at this point are stopping that, getting a warrant. And they’re just, like you said, covering their ass. Yeah. All right, how about search incident to arrest? That kind of sounds funny in a way, now that I’m saying it, but that’s a common one, right?

00:55:03:14 – 00:55:21:22

And what does that mean? Yeah, I think probably just the best and simplest example of this is, say you’re you’re getting arrested for anything. They will say DUI, say you get pulled her for DUI, you refuse everything, won’t get out of the car. They pull you out of the car, say you’re under arrest and search you, and you have a gun on you.

00:55:21:24 – 00:55:54:23

That’s good. Yeah. So that’s a good search. That’s a good search. Yeah. And basically the bottom line with search incident to arrest is that you are being arrested and they are permitted to search you. The reasoning behind this is mainly for officer safety because they’re not going to arrest you, which in the back of their cop car. And you could have any number of firearms, knives, guns, whatever it is in your pockets or in your waistband, because that puts the officer in jeopardy of you firing into the back of their, you know, whatever while they’re taking you down to the station.

00:55:54:23 – 00:56:12:16

So they are always going to search you if you are arrested. And again, arrest guys, it means you’re being handcuffed. You’re being put in police custody. That is when that triggers their ability to search you incident to rest. It will happen every single time. Now I’ve had some cases, Justin, where the search incident to arrest gets kind of squirrely sometimes.

00:56:12:16 – 00:56:34:05

And most times it’s involving a female. Yeah. And you have a male officer on scene. Yeah. And what the policy is, and I think everyone pretty much honors this at this point. They will call out a female officer to the scene to do a pat down search, etc.. So there’s not any claims of inappropriate contact. But a lot of times I find I’ve seen, you know, women particularly hide you.

00:56:34:05 – 00:56:50:11

No drugs usually. I kind of figured this is where you were going. I was going to bring this up with even just like the search incident to arrest the first example, there was a video that I saw on one of I don’t know if it was Instagram or TikTok, whatever, and this is probably 2 or 3 years ago at this point.

00:56:50:11 – 00:57:11:28

But essentially police had arrested a guy and they put him in the car, I think, just to detain him. So they had him cuffed behind his back, put him in the car. There were some other people in the car. They were going to pull him out to do the search incident to arrest. Finally, once they got like the scene under control and he had dumped a gun under the seat in the back of the in the back of the cop car.

00:57:11:28 – 00:57:37:29

Okay. Oh yeah. Yeah. Oh yeah. Yeah. So, like, while he was in there before they actually searched him, he was able to go that out. Right. And try to kick it under the seat, which ultimately didn’t work. But like you said, that’s that’s why they’re doing these things to, you know, make sure that they’re safe. But yeah, the female thing I mean, I’ve seen a lot of them where say they can’t get a female officer to come out, what they do when they take them to central booking and then they get search there, they got drugs on them and they get ended up.

00:57:38:03 – 00:57:58:28

They end up getting charged with contraband. Yeah. Because they contraband. Because they’ll tell them when they get there. You need to tell me if you have anything on you, because as soon as we go in there and start searching you, if we find something, it’s contraband. That’s an F2. Yeah. Felony. Felony two. Yeah, yeah. And I also take that even one step further.

00:57:58:28 – 00:58:20:09

I’ve seen a number of cases on both sides of the fence here that the person will have drugs usually on them. And the cop say they did search him incident to rest. And it was, say, a woman and she put it in her bra or she put it and he did like kind of a light pat down because he didn’t wanna get anywhere near any like private parts or anything like that.

00:58:20:11 – 00:58:36:08

And so they still have it in their ball, they still have it in their underwear, and they will, like, Jimmy it out in the car and leave it in the car because they don’t want to bring it in to the central booking. Right, because they’re going to get searched and they don’t want to bring it into a governmental institution.

00:58:36:14 – 00:58:54:03

But the moral here that I want to tell everybody is the police officers protocols when they get in their cruiser for the first for that day, they are required to search their vehicle and check their vehicle, and they are also required to do the same thing when they turn the vehicle back over at the end of their shift.

00:58:54:05 – 00:59:14:14

So they’re going to find it and they’re going to know. And when you get charged with this, they’re going to put in their report that they had searched it prior to that, and they searched it after. And it’s actually not even at the end of the shift. It’s at the end of every arrest, actually. Now, that’s how I said, because they can arrest multiple people sometimes in a shift, that they’ll they’ll search it and find it.

00:59:14:14 – 00:59:29:18

And then it’s pretty easy to put two and two together. I searched it, there was nothing. I searched it after I took her or him out of the car, and now all of a sudden there’s a crack pipe. Also, I’m pretty sure all police cars, they have them VR on the outside and also the inside. Oh yeah, they got the camera.

00:59:29:20 – 00:59:43:14

So you’re back there like Jimmy interact? Yeah, like they see you doing the dance and, like, squirming. Yeah. And, you know, I’ve even had people do do this and I’ve seen on the MDR the cop, they kind of keep an eye on this, you know, and they’re like, what are you doing back there? Oh yeah. What’s going on?

00:59:43:15 – 01:00:02:05

You know, and sometimes people are like, getting ready to puke. Like it’s any number of things the person could be doing because they’re drunk or whatever. But yeah, a lot of times it’s they’re trying to like they think if they’re going to hide it in the cop car, it’s going to somehow go away. Yeah, yeah. And I think a lot of those types of people are probably high when they get arrested or just.

01:00:02:06 – 01:00:17:16

Right, you know, not really thinking it’s it’s more probably panic mode. Yeah. I mean, at that point it’s you got the choice of do I try this? Why do I just say, hey, I have a crack pipe? Yeah. You know, those people aren’t going to say it. Those who aren’t going to. Just outwardly sad. Although some do. Some do.

01:00:17:17 – 01:00:41:29

Yeah. So, okay, so let’s just talk also about when we’re talking about searches here. Plainview. Yep. Kind of easy. Kind of makes sense just saying it right. The cops sees something in plain view. They don’t have to go get a search warrant for that. You know, they pull you over on a traffic stop. They come up to the window and you have a crack pipe sitting there on the dashboard, or like a roach or a roach in the ashtray.

01:00:42:04 – 01:00:59:08

Yeah. Yeah, I mean, that that type of stuff is plain view. They can grab it and then when they’re going to grab it, if they see something else that that’s been Plainview then. And the bottom line with Plainview is they have to be legally in the place that they are seeing it in plain view. And as long as they are legally in that place, it’s it’s fair game.

01:00:59:09 – 01:01:25:17

Yeah. I actually had a speaking of Plainview, a case. This was years ago. It was a major figure here in York who was very high up in the business world. I’m not going to go any further than that with that to identify a person. But either way, they had a pretty large property here in York that was kind of surrounded by hedges.

01:01:25:20 – 01:01:47:29

By hedges, I mean like bushes, bushes and plant greenery, etc.. And the person wanted they smoked marijuana, okay. And they wanted to use marijuana regularly, and they didn’t want to go out because of who they were, like into the community and like buy it from a dealer. Right? So this person decided to grow their own marijuana and they didn’t have a major operation.

01:01:47:29 – 01:02:10:08

But I think three plants and but they were growing it like just out in the sunlight, like I think they actually had a plant like or two plants actually right on their front porch. And there was like another plant somewhere else on the property. And the police ultimately charges person with ID or manufacturing marijuana. And that, again, this is years ago.

01:02:10:11 – 01:02:25:04

I haven’t seen him really doing this much anymore in York, but this was back when they used to fly like helicopters around. Oh yeah, like in the air space. And they could see like like one of those cases you, we read in law school, I can’t remember what it was with the barn. Oh, you know what I’m talking about.

01:02:25:05 – 01:02:46:04

Yeah, yeah, yeah, but in any event, and I’ve actually seen this in a few cases, I haven’t seen it recently because I. And I did talk to a cop who used to do this not too long ago about this. What he told me is that they actually aren’t doing this anymore. Yeah, but they used to fly these helicopters around like cornfields in, like, southern York County and farmlands.

01:02:46:04 – 01:03:01:00

And they would find, like, plots of marijuana growing operations in the cornfields, like, hidden in there. I think some of that is definitely okay. I think it the case that okay, like like that’s fine. Like they can you can do oh the police can do that. Yeah. Yeah yeah. The police can’t do that. So you can’t do that.

01:03:01:02 – 01:03:18:02

No, no. Yeah. Well I mean maybe I’ll get my pilot’s license, I don’t know. No, but you can’t grow the weed. I’m saying that would be a week or the week or the week. Yeah. No, but that case that I’m thinking of, and maybe it honestly might even be a Pennsylvania case. I just can’t think of it. I just remember that there was a barn and there was the helicopter thing or an airplane.

01:03:18:02 – 01:03:38:17

And the issue was essentially, at what point does the airspace not become your space, not become your space? So it’s almost like curtilage, right? Exactly. You don’t own up to the moon. Yeah. Like, you know, or whatever. So I think it has to be, you know, if you’re just up there, especially at a decent distance, there’s absolutely no issue with that.

01:03:38:18 – 01:03:57:16

Right? But if you’re flying like ten feet over, I think that might be an issue. You’re about to land on the property. And now we have drones too. Now we do have drones. So I haven’t seen anything about drones. Yeah, well, I’ve seen drone situations, but I think and I think we mentioned this in another episode two where not so much to investigate, although I think that probably would be fair game.

01:03:57:17 – 01:04:20:00

I mean, there would be some interesting case law in that, probably, but I’ve seen it used in more like surveillance of operations, not of like trying to find illegal things. Oh yeah. But like we want to watch the police do this investigation. Oh, storm this property. You know, and I think the drone technology, even just the last like 2 to 3 years is probably.

01:04:20:02 – 01:04:33:18

Oh, it’s a massive dude. It’s just that they can put on those things out. Yeah. If you think back to, like, the one I’m thinking of, this is going back. Oh, it was kind of up near my area. Like at least I think it was. I think it was in the Poconos. There was the guy that shot a state trooper.

01:04:33:18 – 01:04:52:03

And then remember, he was like, on the run in the woods. Oh, yeah. Do you remember that guy? That was the case that went all the way out in, like, Longwood Gardens? Yes. You know where that was? And he was like hiding. He was run for like a it was like a couple of weeks. Yeah. It was really anybody who lives in or around Pennsylvania, you know, this case, Eric, something I feel like.

01:04:52:04 – 01:05:09:17

But it doesn’t, whatever the name is. But do you remember at the end of that case, like, they were, like, posing with the guy, like he was a deer they shot or something. But I think that was like one of the first cases. I remember a lot of drone involvement. Yeah. In like the ones like with what is it, the heat detection or like thermal.

01:05:09:18 – 01:05:27:21

Yeah. Thermal. Yeah. Cause they were looking for him in the woods and that was like one of the first times I remember actually seeing, like, anything about drones and like, you know, back then they were even more expensive. That guy was escaped from jail, right? He had escaped from prison. I thought, let me look him up. Yeah, well, either way, we could leave Levi.

01:05:27:23 – 01:05:51:06

Yeah, we’ll see if we can. We could pull up Levi, if you can give us something here about that case and probably know which case you’re talking about, that we’d appreciate that for our viewers. All right. So again, we were okay. We were talking about I was telling you this story about this guy. So in that case, the guy in Yorkshire, they had flown this helicopter and they had a pretty good idea it was marijuana plants.

01:05:51:06 – 01:06:11:23

But like you were saying, they weren’t getting close enough because it would have been one obvious if there was a helicopter in the front lawn or you’re back lawn. So what they did and where it became a little bit of a legal issue, is they went to like the edge of his property. And remember, I told you in the beginning of this, he had a big property and they were looking through the hedges.

01:06:11:26 – 01:06:30:03

And when they did that, they were able to, I think through using like binoculars or something like identify this as marijuana plants. Right. That’s a problem. Yeah. And so I was I actually filed a suppression motion in that case because we had like this combination of like a helicopter was okay. Yeah. But then the hedges were a little squirrely.

01:06:30:03 – 01:06:47:06

So I was like, do they have enough right to, to do to execute the warrant? Which they did, of course. And charge my guy. But they prosecution before we ever got to the hearing agreed to dismiss the case. So I think what happened is they kind of looked at it and they were like, I think we’re going to replace this.

01:06:47:08 – 01:07:04:10

Yeah. And there was a lot of pressure to like in the media about this because of who this person was, that they ultimately made that decision where we kind of did like almost like a little diversion exercise. And then they dismissed the case. Yeah. Yeah, that’s I think peeking through the bushes. If they if you couldn’t see through them, I think that’s a.

01:07:04:11 – 01:07:21:00

Yeah. Because again, it comes down to being legally in a place. And I think there’s also, if I remember correctly, I haven’t researched this recently, but I think there’s case law about like you have to be careful how much like extra human ability you’re adding like with the binoculars. Like, well, in the thermal thing too can be a part of that too.

01:07:21:05 – 01:07:42:21

Because I remember seeing something. There’s definitely a case out there where I was looking that up as well. I don’t remember what this was for, but yeah, there’s there’s definitely some limitations. Yeah. On certain things and technology, once you get to a certain point that that can take you out of there, taking more steps than they are allowed to do just to get to the point where they can then get a warrant or something.

01:07:42:22 – 01:07:59:00

I think. So, just to hit on it real quick, because I think this is what it was, and I’m going to have to look this up for the next one. But pretty sure with the thermal, what it was is they had some evidence that there was a grow up in this house, and they wanted to use the thermal to see like, oh, if there’s heat lamps.

01:07:59:00 – 01:08:18:11

Yes, yes. So because it’ll exhibit if there’s a big grow operation, you’ll see a heat signature, if I remember correctly. And I think this is why I remember this, because it kind of just stood out to me like, oh, that’s interesting. So they had to get a warrant to use like the thermal imaging. Oh, okay. Because it was essentially an invasion of privacy into the home.

01:08:18:12 – 01:08:39:26

Right. So I just thought that was interesting because I was like, oh, I, I mean, it makes sense. But you know, until you actually start looking at the stuff, you think about it often. I’m surprised we don’t see that more. Yeah. Now, because it’s technology, like with thermal imaging now and drones like, dude, it’s so good. Like, why would they not use this more and why would they not take the right steps to use it more?

01:08:39:26 – 01:08:54:10

If there is a need to get a warrant or something, and maybe they will. I mean, you know, I think it’s coming, the drone stuff for sure. Yeah. But yeah, I’m curious to see because the drone stuff also has a level of safety for police there too. You know, they don’t have to physically even be present. They can be a distance away.

01:08:54:11 – 01:09:32:09

Yeah. Okay. The last thing with the searches and we’ve kind of gone off of this a little bit here. We’re talking about these different searches, but it’s just exigent circumstances. Right. So guys, exigent circumstances are situation where the, the police basically believe that exigency exists. And exigency kind of means immediate need or emergent need, like there might be an emergency happening or someone might need help, or someone is hurt and they need to come into that area or come into that home to make sure that there is not somebody that is in need of aid.

01:09:32:11 – 01:10:05:17

Now they have to be able to articulate that. They have to be able to explain what they thought that exigency was. But if they’re able to do that and it passes, you know, general muster there, they are able to enter into areas that they can’t otherwise legally be for that reason of exigency or that need to check if it exists, and then if they’re in that house or in that area because of exigency, and they then see a crack pipe, they are now in an area they’re allowed to legally be, and they now can obviously sees that crack pipe and investigate that or charge somebody.

01:10:05:17 – 01:10:30:01

And this obviously goes for many other things that they could at that point legally see. Okay. So we’re going to move back into myths here okay. So Justin, if I refuse a field sobriety test or if I refuse a blood test in a DUI case, then I can’t be charged with a DUI. Oh, wrong wrong wrong. Yeah, yeah, yeah, we hit on this to a lot.

01:10:30:04 – 01:10:48:09

We did, we did, we did a whole episode, guys on DUIs. And again, it’s a very common crime that I think a lot of good people in society find themselves in. So please watch that. It was quite informative. We’re probably going to do another one because of the response that we got to that one. But either way, I mean, Justin, we know that’s wrong now.

01:10:48:11 – 01:11:16:21

White wrong. Yeah. But just to kind of small blurb unpack this in this episode here not to do a whole episode on it again, but field sobriety testing generally. Are you required under Pennsylvania law to do field sobriety testing? No requirement to do the field sobriety testing when it comes to a breath test or a blood test, if the officer suspects you being DUI and asks you to submit to that, you absolutely can refuse those, but you’re still going to be charged with DUI in most cases.

01:11:16:23 – 01:11:32:18

I don’t think I’ve ever actually seen one where they got to the point where they asked them to do the test, and they refused that they don’t catch you, right? By the time they get to the point where they’re asking for. Yeah, they they test. Yeah, they are going to charge you with DUI. Now, I have have a lot of cases where the people refuse.

01:11:32:20 – 01:11:44:05

Then they come and I meet with them. And, you know, they they tell me like they say a lot on the street. I only had two beers and I say, why the hell did you refuse? Yeah, you should have just given blood. You might have been able to walk yourself out of that DUI if you were under the legal limit.

01:11:44:06 – 01:12:03:26

Yeah. And then they go, oh, damn, I wish I would have given blood. Yeah. Too late. Yeah. And then they lost their license for 12 months. Just for the refusal? Yeah, exactly. They got another DUI, and now they’re charged. And I don’t have any scientific evidence to prove that they weren’t right. Like, other than, you know, generally trying to argue that they weren’t impaired enough, but, you know, they’ve got the odor of alcohol.

01:12:03:26 – 01:12:22:15

They’ve got the way the person was driving, they’ve got how they presented, they’ve got all that. So hopefully you can get a melody, if not yet another year suspension and no way to prove that you weren’t intoxicated. Right. So no. So like the and when earlier in the this this blurb here you had said breath or blood I do want to kind of caveat this.

01:12:22:21 – 01:12:48:28

There is a difference in the breath with the portable breath test, which is the breathalyzer on scene. You don’t have to consent to that and you will not get your license suspended if you do not consent to a portable breath test, portable being the main word there. Lancaster County here in Pennsylvania does do breath testing for their chemical test, which is usually it’s a calibrated machine at the police station that you sit in front of and blow into.

01:12:49:04 – 01:13:17:12

And I think you blow three times, twice. Well, at least twice. And it takes the average of it takes the average of the two. Okay. So that is if you refuse that, that will suspend your license. That’s refusing the chemical test, not the portable breath test, because technically they’re not taking anything out of you. Right. So it’s a little bit different in the the law also I think yeah, I don’t think that there’s anywhere else in central PA that uses those.

01:13:17:14 – 01:13:38:10

What the breath test, the calibrated breath test. Well, and obviously I mean, even if you think someone’s only intoxicated through alcohol very easily, could have other stuff in their system and that breath machine only is out. You know, I’m gonna I’m going to mental note this, and I’m going to get back to our viewers about this. I’m going to talk to some prosecutors out there in Lancaster County.

01:13:38:11 – 01:13:57:02

I want to and if you are a prosecutor in Lancaster County, can you tell me the reason that you guys use breath instead of blood? I don’t get it. I don’t get it. Why? It’s allowed. So if I mean. And I know if you refuse it, it’s with breath only. It’s automatically a tier three. Yes. They don’t need to get a warrant correct.

01:13:57:03 – 01:14:20:15

So that might be why they do it. I don’t know maybe. Yeah. Because if you refuse a blood test that is a tier one DUI. Unless they then get a warrant for your blood and you refuse the warrant, that then creates a tier three DUI, which is the highest tier. Yeah. And honestly, I mean, if more places use the breath, I’d be challenging that all the time because you know who’s doing those tests and who’s running that machine?

01:14:20:15 – 01:14:45:00

The cop, the cop. Yeah, yeah, the cop. And just the science behind it all and how you have to calibrate it. And most jurors are not going to fully grasp how that works. And it is not to even confuse people, but I think it’s just very easy to so doubt in was this actually accurate? Right. It’s easier than I have your blood.

01:14:45:02 – 01:15:01:09

Yes. Yeah. Much easier. Yeah. So that’s another question for a prosecutor in Lancaster. Like why why do they choose in that county to do it that way. And it’s not a knock on them. I just don’t know what the reason is. And there might be a good reason. Yeah. I was gonna say I don’t know if it’s if I don’t know that PSP does it out there.

01:15:01:11 – 01:15:19:03

I know PSP might still do blood Pennsylvania State Police I know, but the local departments, the. Yeah, yeah, the regionals and the township departments. Yeah they do do breath out there. So maybe it’s just easier. More convenient I don’t know. Well, maybe, you know, it’s maybe it’s just a product of they’ve done it for so long. So they just keep doing it.

01:15:19:04 – 01:15:40:28

Yeah. That’s that’s true. Sometimes that’s how things happen. That’s why things go that way. All right. Okay. So I think we’re going to be done with that one. Because again we’ve talked about that a lot. But it’s definitely a good one. And you know I definitely want people to see that. And Levi, if you want to put that out in another short on TikTok Instagram, do that for people because it’s good to put that in front of them pretty consistently.

01:15:40:29 – 01:16:01:02

All right. I’m going to go over. We’re going to Justin. We’re going to bifurcate this episode, meaning I’m going to split it up into two separate episodes. But I do have one more myth I want to go over for today. So the myth is physical evidence, fingerprints, although that doesn’t really happen a lot. DNA injury to a victim.

01:16:01:05 – 01:16:27:28

Weapons found on scene must be present to convict. Said another way they cannot convict you on circumstantial evidence alone. Or circumstantial evidence alone is weak. That’s a myth. That’s not true. In fact, I didn’t look up the statistic on this, and I maybe should have. And maybe I will. But either way, there are many, many cases that do not involve actual physical evidence right now.

01:16:27:28 – 01:16:58:28

There are many that do, but there’s plenty of convictions that happen all the time, even all the way up to homicide, that don’t involve physical evidence other than maybe a dead body, you know, or something like that. But sometimes there’s homicides without a body, right? Yeah. So, I mean, you don’t need physical evidence to get a conviction. And in fact, they don’t have it a lot as a, as a prosecutor, the amount of cases that I tried that were almost solely circumstantial evidence, way higher than ones where I had a ton of physical evidence and most of those were guilty.

01:16:59:00 – 01:17:20:27

Yeah. Circumstantial evidence can be so, so powerful, especially if you have a ton of it. That’s the thing too. Like, I think a lot of people just assume that whether you have a little bit of circumstance or all circumstantial, you know that that’s not enough. But all that circumstantial evidence, when you put it all together and draw all those inferences from it, right.

01:17:21:00 – 01:17:42:05

Pointing to this person, did that crime to a jury, that’s like gold. Yeah. Like they eat that up. And if kind of like we talked about in the Rules of Three episode way back when, that was the single bonus episode we’ve ever done, which, by the way, we should do another bonus. We should, we should. But yeah, but yeah, like just reiterating all of those little pieces to the jury.

01:17:42:06 – 01:18:01:15

Yeah. Over and over. And then being able to again draw reasonable inferences and conclude that it was this person that did this. Like I said, it’s gold. Like it just goes such a long way. You know why? I think juries love cases and they eat them up. There are circumstantial evidence they get to play detective. Yes. And they love coming.

01:18:01:16 – 01:18:21:14

This is the again, this is the human mind in its in its revel. Yeah. People love to come to conclusions on their own and to solve things because they feel like they’ve done a good a good deed, right? They’ve they’ve figured this out. Right. And that’s why juries love circumstantial evidence cases. And that’s why you just said it’s gold.

01:18:21:15 – 01:18:39:28

Yeah. Like I love them too. Yeah. I mean, it’s a lot easier. I mean, yeah, it’s easy to convict someone if you got the gun and you got the DNA and all this, you know, all this stuff. But if the jury gets to come to that conclusion naturally, and a savvy prosecutor is able to kind of lay it out for them, but let them come to that conclusion on their own goal.

01:18:39:29 – 01:19:02:08

Well, they’ll get that every time. Like, excuse me, but yeah, I completely agree with you. I think a lot of this, this myth is driven a lot by Hollywood. Yeah, right. Like, you know, we see a lot on Hollywood and movies and TV dramas, you know, forensic evidence. And there’s even a show, forensic cold cases, right, where they solve these cold cases.

01:19:02:08 – 01:19:17:27

And that’s. I’ve launched a show. It’s a great show. Well, interesting show. I just think to, you know, even with the ones that are super straightforward, like you can have the gun and the person can be a person not to possess doesn’t mean the jury is not allowed to possess a fire. Yeah. Person not to possess a firearm.

01:19:18:02 – 01:19:34:28

And essentially all that’s required is the person is not allowed to possess due to a prior conviction or some sort of disqualified for which the parties usually stipulate. So the jury is basically told this person can’t possess a fire. They don’t know why, they don’t know why that could be prejudicial to the defendant. Then it has to be at least six.

01:19:34:29 – 01:19:56:14

They had to be become disqualified at least 60 days before the date that they were found with the firearm. And then basically what they had was a firearm, which can just be a receiver. It doesn’t need to even be a functioning firearm. And that’s basically it. And still juries get it wrong. I’ve seen cases where you have the gun, they’re a person.

01:19:56:16 – 01:20:22:21

You basically stipulate to everything. And the gun was was essentially next to the person, but not on not right on their person. They’re like, wow, we don’t know if that’s enough. Yes. You know, like like, what are we talking. So that’s that’s a situation where they have physical evidence and they still don’t convict. Whereas if the circumstances in that case point to the fact that it’s this person’s firearm, and the jury is able to conclude that they’re going to feel better about that, and they might even convict more likely.

01:20:22:22 – 01:20:39:04

Yeah. So and another thing I know we talked about, well, maybe we didn’t talk about this part, but testimony alone is enough to convict. I used to do I put that in every deer that I had as a prosecutor made sure people if you if you believe it, if you find it credible. Yes. Testimony alone is enough to convict.

01:20:39:06 – 01:21:03:24

A good example of this is a strangulation case. We talked about this in our domestic violence episode where the crime of strangulation, which is a felony, usually in domestic cases it’s always a felony. And non-domestic cases, it can be a misdemeanor, but you are not required. The prosecution is not required to prove injury at all. So you can have a strangulation case with zero injury and that you can be convicted of that.

01:21:03:24 – 01:21:29:05

And how they do that is through witness testimony. And the jury will be instructed that they don’t need to find physical injury to do that. If they find the witnesses credible, they can convict on that alone. Yeah. So same thing. Yeah. The witness testimony and circumstantial evidence only as a prosecutor were always in my ear. And I can tell you almost every trial that I did, there was usually 1 or 2 people that were like, I’m not okay with that.

01:21:29:05 – 01:21:45:26

I need physical evidence. Yeah. And so, you know what we did, they don’t get on the jury. They don’t get on that journey. Bye bye. Yeah. But yeah. No, I definitely think that as a defense attorney, I love people who think they need physical. I want you, yeah, yeah. And there’s no physical evidence. And believe me, like, you know, in these jury trials that we do, like, we’re still hammering that home.

01:21:45:27 – 01:22:09:08

We’re still pointing to the fact that there isn’t this that there isn’t that there’s no physical evidence. But what we’re trying to relate to, to you guys, our viewers, is what the law is in practice, not the way we try to construct it specifically, you know, in a trial. Well, yeah. And I mean, every trial is so different, like we talked about like the strategy is going to be strategy every single, even if it’s the same charge, almost the same exact set of facts.

01:22:09:09 – 01:22:26:04

The witnesses are different. How they perceived it is different how we attack it as different. I actually was thinking about this and was going to suggest that. Tim, maybe for our next episode when you’re out, that we do some kind of like trials, like just short one about like strategy, etc., or just talk about some of the cases that we’ve done.

01:22:26:06 – 01:22:46:04

But when I was thinking about it, like, it’s just so hard to even come up with like a hypothetical and really put out there, like what we would do. Like I, I think there’s just so many variables that. No, I mean, yeah, guys, if you find yourself in a situation where you have a criminal charge against you, talk to us, talk to a defense attorney, for sure.

01:22:46:06 – 01:23:05:20

The defense attorney is going to have years and years of experience developing strategies that have been and may be very successful for you in your specific circumstance. And that’s what Justin is talking about here. This isn’t about, oh, there’s like a, you know, carte blanche every time we use this or that. I mean, that would be silly, right?

01:23:05:24 – 01:23:25:18

I mean, you could attorneys could be robots then. Yeah. You know, I was going to that’s kind of where I was going. Just like, I don’t want to put like a hypothetical out there. And that’s why I feel like AI is never taking my job because it’s like, you know. Yeah, you just it’s not going to work. So but we didn’t want to give somebody like with the same set of, say, we come up with a hypothetical, somebody got the same set of circumstances and then, you know, they go and try something or.

01:23:25:19 – 01:23:42:17

Yeah, right. You know what I mean? Like, yeah. And I guess we should kind of caveat say this, like what we say on this podcast is not legal advice for your individual situation. I think most people realize that at this point. But yeah, if you have a specific situation, call us. We’ll talk to you about your specific situation and we’ll do it for free.

01:23:42:17 – 01:24:08:14

And then if we decide to move forward, then yeah, yeah, figure it out. Yeah. But okay. Good. Well, Justin, that was a great episode, man. And I did want to say one other thing to you, and I’m. No, Tim’s not here right now to hear this, but I’ll say it to him to last week when I was not here, you guys did an episode on you kind of answered a lot of questions that we’ve been getting on different TikTok, Instagram or socials.

01:24:08:14 – 01:24:26:04

Right? You know, LinkedIn, those types of questions do that episode was fire man. I thought that episode was great, I watched it, I was away, but I was I had a smile on my face. Bravo, you guys did a great job. I thought it was cool for the viewers, and we are definitely going to do an episode like that periodically.

01:24:26:04 – 01:24:54:28

So if you’re connecting with us on our socials, whether it’s Instagram or TikTok and some of the times when people connect with us, they say really, really dumb things like we’re just like rude things. And I think that comes from a certain sector of people that just want to just be difficult. But by and large, most of the comments we get are constructive questions or constructive comments that we will respond to and sometimes can trigger some thoughts for us.

01:24:54:28 – 01:25:18:20

Is that an episode or podcast that we can do actually on that, on that issue? So please keep firing those at us. Keep keep throwing those in there. It doesn’t take long to connect with us on that. And we will answer your questions. We will get back to you. And we may you may find your question in an episode, and we’re not going to call you out by who you are because all that stuff, you know, obviously private, but we’d love to, you know, get to feature you on one of our episodes.

01:25:18:20 – 01:25:39:18

So thanks for watching the Now We Defend podcast here at Kearney Law. It’s been a pleasure this week. And Justin and Tim are going to take over next week because I’m going to be unavailable. However, I think when I come back, we are going to go back to these myths because we have a heck of a lot more to do and to tell you guys about, so stay tuned.