The phone rings in your office on a Tuesday afternoon at 1:14 p.m. The CEO of your favorite tech giant client sounds unnerved:
“My son is on his way to the police station. They want to talk with him at 2, but they’re not saying why. Our son has heard rumblings on social media he was inappropriate and forceful with a girl at a party—but he insists everything was consensual. I thought he should tell his side to the cops but then I was wondering if maybe he should talk with a lawyer first?”
The CEO spits questions at you: “Is he a rape suspect?”
“Are they going to arrest him?”
“Don’t they have to tell him the accusation first?”
And on and on … But you’re a big shot M&A lawyer, not a criminal lawyer.
What can you possibly do in the 46 minutes remaining before the police expect the CEO’s son to arrive for a discussion?
Don’t Worry About Malpractice
For a criminal defendant to prevail in a malpractice claim they must prove they are actually innocent of the original charges. (See Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).)
A criminal defendant would have to be convicted or charged due to the negligence of counsel and then have that conviction overturned to bring a successful case. If you are not involved in the plea negotiation or trial of the case, then civil exposure is farfetched.
Putting on a Criminal Lawyer’s Hat
Several rules in the Texas Rules of Criminal Procedure and the Texas Rules of Evidence make practicing criminal defense special. When dealing with a criminal case, a lawyer must “change hats” and think like a criminal defense attorney.
Don’t assume the state either (1) has present knowledge of all the facts known by your client of an alleged crime; (2) will inevitably learn of such facts; and/or (3) has a legal right to discover facts unknown to them.
An accused has the right to remain silent under the 5th Amendment. Texas Code of Criminal Procedure Art. 39.14 governs discovery and that provision is unilateral. The state is not ordinarily entitled to depositions, interrogatories, or production of evidence.
Texas Rules of Evidence § 503(b)(2) is the “Special rule of privilege in criminal cases,” and is as follows:
In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. (Emphasis added).
When compared to the general attorney-client relationship rule of privilege as defined by 503(b)(1), which states in relevant part, “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating … legal services,” the attorney-client privilege in the criminal case is infinitely broader. If taken to its logical extreme, the mere fact an attorney represents someone on a criminal matter could be argued as privileged. Put it this way—wouldn’t the police be very interested to know an unknowing suspect went to a criminal lawyer’s office?
Criminal counsel’s main goal is to cut off the main source of oxygen of a criminal prosecution—information from the accused.
Understanding Police Investigations
Many of us are programmed from birth to talk our way out of trouble. We are raised to believe that when we’ve done nothing wrong, people will take us at our word. We also think if we admit to making mistakes, others will understand and be fair with us.
It’s tempting to act based on these assumptions. What we don’t understand is some people won’t take us at our word, especially if they think we’ve committed a terrible crime. We also assume our version of taking responsibility might include an apology, but we don’t realize police or prosecution’s version of responsibility might be 20 years in prison.
I like to think of investigations in two different ways. First is a linear investigation for most simple crimes where the elements and facts are usually straightforward. Police just want to check the box for each element in a linear investigation (think shoplifting or DWI). Second are “360-investigations,” which are the complex investigations such as murder, sexual assault, or drug rings (think CSI).
Remaining Silent and Invocation of the Right to Counsel
Most investigations are linear due to the relative simplicity.
Advising a client to remain silent—even if only for the immediate situation—is what any novice criminal law practitioner should do in the vast majority of situations. There is nothing ethically or legally flawed by advising a client to invoke their 5th Amendment right to remain silent as well as their 6th Amendment right to counsel.
People fear making the police angry. They also fear invoking the right to counsel looks bad or arouses suspicions. These fears are understandable and not entirely unfounded—but the police are probably already suspicious, which is why they’ve called in the first place. A skilled lawyer talks with police, humanizes their client, and diffuses these suspicions.
Investigations With Detectives or Other State Actors
The Disciplinary Rules of Professional Conduct require lawyers to have honest dealings with everyone. Deception can be a legitimate law enforcement tactic, though. Police can do things like infiltrate the mafia, run prostitution stings, or pretend to be a 12-year-old to trap online predators.
Your client is more than likely no match for a police interrogation, particularly if they are teens or young adults. (Owen-Kostelnik, J., Repucci, N.D. & Meyer (2006)); see also Testimony and interrogation of minors: Assumptions about Maturity and Morality. American Psychologist, 61(4), 284-304.) Even adults regularly succumb to natural instincts to obey authority. Police are highly polished and trained in leveraging their authority to get suspects talking and giving incomplete or poor answers to surprise questions. Detectives frequently use the Reid Technique of interrogations and its variations, or the 5-step Preparation and Planning, Engage and Explain, Account, Closure and Evaluate, or PEACE Method. (See e.g. Cameron v. State, 630 S.W.3d 579 (Tex., Crim. App. 2021).) In any event, law enforcement usually has a plan.
Some initial interactions with federal authorities can affect the government’s charging decisions and potentially sentencing well down the road. If your client is under federal investigation and you’re aware of it, then obviously get it to a criminal lawyer quickly.
Can’t the Accused Talk Their Way Out of Trouble?
Sure. But remember a vague police officer is probably being so for a reason—usually to retain the element of surprise over a suspect. Professional police officers in search of the truth shouldn’t care whether it comes from an accused or his/her lawyer. An officer insisting on a one-on-one with your client alone probably thinks they already know the truth, and your client might be arguing with the drink machine that stole his dollar about their innocence.
“But I’m Innocent and I Can Handle This”
Let’s say your client gives a statement like this: “It was a weird vibe. My buddy and I got to the party, and I don’t even think I finished my beer. A few people were looking at us funny, so he and I left.”
Here’s how the police report might summarize your client’s statement: “Suspect admitted entering the house.”
Get the picture? Confession or not, don’t give any oxygen to the fire.
What Should You Do if the Police Are There With Your Client?
Most on-view arrests don’t trigger a right to counsel such as DWI or domestic assault. Police also aren’t big fans of letting suspects make phone calls to lawyers on the side of the road. If this happens, though, tell your client to behave but remain silent. Tell them to comply with any police commands but not to consent to anything optional such as a search or an interview.
Never allow a client to give police cellphone or computer passwords voluntarily. Cellphone and computer examination are hot topics of search and seizure law, and your client does not want to agree to a fishing expedition by police.
What Happens Next?
Get the case to experienced criminal counsel who is comfortable dealing one-on-one with law enforcement. Some of the warmest “thanks” you might ever get are from helping someone in the most terrifying moment of their lives or the life of their loved one … all because you kept cool and knew what to do in those 46 minutes.
Jeremy Rosenthal is a senior partner at Rosenthal, Kalabus & Therrian, one of the largest criminal defense law firms in Collin County. He has tried over 250 cases and is a former prosecutor in Collin County. Rosenthal had cases both at the Texas Supreme Court and the Texas Court of Criminal Appeals. He is the past president of the McKinney Bar Association, a former board member of Texas Criminal Defense Lawyers Association and serves as an assistant editor for the Voice for the Defense magazine. Rosenthal graduated from SMU Dedman School of Law in 2000 and earned his undergraduate degree from Texas Tech University in 1997.