Interviewer: How does Miranda work? You probably get a lot of people that say, “Oh, they didn’t read my rights. Can you get my case thrown out?”
Paul Geller: I have people that say that all the time and there are certain circumstances, for instance in DUIs, where the court has said that your statement – prior to being place in handcuffs and put in the patrol car and driven away – are not within the scope of requiring Miranda because it’s simply a detention and there’s still an investigation going on. There are obviously cases otherwise where the statements are made when Miranda should have been provided and those statements could be thrown out.
There are many courts, however, that are requiring defendants to go to trial before we even get into discussions about whether or not a statement should be admitted or thrown out, which really puts the pressure on defendants to plea bargain because almost every prosecutor’s office that I know in LA county, San Bernardino, and in Orange county, on felonies, certainly will say, if you don’t take the offer prior to the preliminary hearing, the offer will go up from there. They will overcharge oftentimes in their charging document.
They will, what we call, “stack the charges” against the defendant so the exposure for punishment is so severe that it prevents defendants from wanting to legally challenge some of these things, which is inappropriate, in my opinion, as far prosecutors are concerned. I also think it’s unethical. So, it really puts the pressure on defendants to strike plea bargains and I think that’s where a good defense attorney comes in by being able to communicate this to the client, talk to the client about those risks, and also talk to prosecutors.
Certainly knowing the prosecutors in court, the supervisors in particular buildings, and the powers that be higher up through management in that district attorney’s office is important. That’s where the importance of that really comes into play, because generally speaking, as you get into the higher levels of management, that type of direction does not occur. You can oftentimes remedy what would be misconduct by a prosecutor in acting in such a way at a higher level. So, it’s important to know different levels of management in that respect.
Interviewer: Do you have a lot of situations where, for instance, the police will call somebody and they’ll say, “Hey, we’d just like you to come in and answer some questions. We’re not going to arrest you. We just want you to come down and give a statement”? Does that happen and what do you tell people if they’re asked that by police?
Paul Geller: That happens all the time and I always tell them not to say a word. Call me first, and then let me be the buffer with the investigating officer. It’s imperative that the person being investigated talk to me first. That way, I have a better understanding of the situation and what we’re dealing with. I can build up a rapport with the investigating officer.
We can discuss issues that may come up, such as bail, if there’s a warrant already in the system, how we want to address any questions from the investigating officer (which ninety-nine percent of the time will be addressed to me and not to my client for reasons that I stated earlier), and that we do not want to provide any type of a statement. I can also provide a statement to the investigating officer that presents my client’s position and perspective without creating an admission, as far as the rules of evidence are concerned, that could be used against my client in court, as it’s going to be twisted and turned to be used against him or her.
Anything I present is simply our perspective of the case at this point in time and has no evidentiary value whatsoever. It will have value, however, to a prosecutor who may later on be making a decision as to whether or not to file a case. I can also, as I mentioned, begin the process of talking with the investigating officer and sort of smooth the waters, if you will, if there’s an arrest to be made, in that I can make preparations with my client about preparing for bail.
I can oftentimes prevent the police from showing up unexpectedly at my client’s place of work or home and creating an embarrassing situation where the client is led away in handcuffs and surrender the client directly to the police, have bail already in place, and make it a much smoother situation, and/or oftentimes present my information to the police department or the investigating officer who then takes it to the district attorney having a better understanding of what our perspective is and, consequently the strengths and weaknesses of the case and then, not having any charges filed.
I can’t tell you how many times I’ve had clients talk to police and then come to me and, were it not for my client’s statement, there probably never would have been a filing of the case. So, it’s imperative that the potential client calls me first.
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