Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

When speaking to MA Police, nothing is off the record- A Boston Criminal Lawyer’s view.

In my last blog, we discussed Boston’s Supreme Judicial Court’s new ruling in the case of Commonwealth v. Tremblay. I used this case to cap off about a week of blogs concerning Massachusetts search and seizure issues.

Through my experience as a Boston criminal lawyer, I have seen how the playing ground is not even between the prosecution and the defense. Some of it is necessary and perhaps even desirable. However, the government’s advantage goes much further than that point.

The reality is that the government has the power and the resources to coerce, cajole, wiretap and virtually anything else it deems necessary in order to build a case against someone. During this time, the suspect may not even know that anyone even suspects wrongdoing on his part. The problem is that, accept it or not, some people are actually not guilty of the things of which they are suspected. And, in the course of the investigation, friends, family and neighbors, not to mention associates, are often squeezed for the “right ” information…whether or not said information is the actual truth.

And then comes the investigative cherry on top…the suspect’s statement. As we have discussed, a suspect does not have to talk to law enforcement. However, people are scared when approached by investigators. And when those officers keep pressing the suspect with assurances like, “Hey, we only want to know your side of things, then you can go home. We know you are a good kid”…it gets pretty hard sometimes to refuse to “cooperate”.

In Tremblaly, the issue was whether or not the statement given to law enforcement was voluntary. In the case, the officers encouraged the suspect to speak by agreeing to take the statement “off the record”.

“Off the record” does not exist in such a situation. Police officers are not news reporters.

To make matters worse, lying to suspects is generally regarded as “good police work”. However, should the suspect return the favor…that would be the felony charge of Intimidation Of A Witness.

People often respond, “That’s not fair” when I explain this to them. I explain that the usual definitions of fairness, logic and justice often do not count all that much in a pending criminal matter.

The question is, will there ever come a time when we, or the appeals courts, will say “Enough is enough!”

Maybe.

At least this Boston criminal lawyer is hoping it will be said in a meaningful manner.

Attorney Sam’s Take On Judicial Warnings

The United States Supreme Court has held that, in order for a statement by a defendant to be admissible, the statement has to be knowing, intelligent, and voluntary. Instantly throwing what we usually consider intelligent, what does this mean? Is the law much different in Massachusetts? Does the highest Massachusetts court think there should be limits on police behavior when it comes to “voluntary” statements?

Kinda-sorta.

In Temblay, the SJC did admonish law enforcement. The ruling states that , “We do not foreclose the possibility that, in different circumstances, if a law enforcement officer tells a suspect that his statements will be “off the record,” a tactic that should be avoided, subsequent statements by the suspect may be deemed involuntary because of the presence of indicia of coercion.”.

Of course, while warning that there are limits, the Court did not suppress the statement in this case, finding that ” In this case, the investigator, Trooper Cummings did not engage “in trickery or [in] making assurances that a statement will benefit the defense…Cummings simply was acquiescing to the defendant’s request that certain of his comments not be included in the written statement that Cummings was preparing with the defendant’s agreement and cooperation. By not including those comments in the written statement, Cummings fulfilled his promise to the defendant and, therefore, did not engage in trickery or deception.”

Confused? You should be.

However, believe it or not, this all makes sense in the world of criminal justice. It is not unusual for an appeals court to criticize a practice that sounds, on its face, unfair…yet uphold the action, sometimes twisting logic like a deformed pretzel in order for the decision to make sense.

The bottom line?

The police can lie to you.

To view the articles upon which this blog is based, please go to http://policelegal.com/2011/07/20/sjc-rules-off-the-record-statements-admissible/ and http://criminal-law.freeadvice.com/criminal-law/juvenile_law/police_lie_questioning.htm

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