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Whether police who clam up with the defense honor suspects’ decisions to clam up

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In Virginia, as but a for instance, it is common for many police officers to hesitate to talk with defense lawyers about the evidence rather than referring them to the designated prosecutor to obtain information.

Numerous ways exist to persuade police and other recalcitrant prosecution witnesses to talk, starting with the defense lawyer’s presenting a genuinely open and human approach that conveys no pressure to provide any information, that offers to chat generally as human to human, and that offers to share insights that the witness might not otherwise obtain.

Nevertheless, nagging me when a police officer declines to discuss my client’s case is my recognition that plenty of police officers will not easily accept no for an answers when a criminal suspect refuses to talk. Yes, caselaw provides protections under the Fifth Amendment and Miranda (with Miranda, usually only for those in custody) for suspects who clearly and unequivocally refuse to talk to police or who insist on having a lawyer present. However, police know how to pounce on opportunity when a suspect is mealy-mouthed about possibly stopping talking or possibly wanting a lawyer (for instance “I am not sure if I should speak further without a lawyer”). When an arrestee says “I will not speak with you and I want a lawyer,” how many police then engage in staged bad cop-good cop, where the bad cop — in the arrestee’s listening distance — feigns anger and indignation to the good cop that the arrestee would play such games this far into the interview?

In any event, for police inclined to clam up when a criminal defense lawyer tries talking with them about the evidence in the case, such police are well advised to read and follow law enforcement trainer Val Van Brocklin’s admonition that police on balance have more to gain and little to lose by talking with criminal defense lawyers. Moreover, I add that since police are public servants paid through our tax dollars, it is unsatisfactory to have them clam up with criminal defense lawyers. They are not serving the public interest by doing so. However, such pontificating about the public interest by criminal defense lawyers will not go very far with police. Val Van Brocklin’s article urging police to talk with the defense, speaks to cops’ self interest.