Hypothetical: Police vs. Attorney-client privilege

[Bill of Rights]

As the title indicates, this is a hypothetical. It has not, to my knowledge, ever happened.

Reading one of Jedi's threads discussing our 5th and 6th Amendment rights, I got to thinking:

OK, so we know we have a Sixth Amendment right to counsel and a Fifth Amendment right to remain silent.

We also know that police are allowed to lie to people (suspects, etc.) in the course of an investigation.

So let's say John Q Public is involved in a SD shooting and has been paying attention to INGO, so he knows to invoke his right to counsel and then shut his mouth. While waiting in an interview room at the police station, a man in a suit enters with a laptop and identifies himself as being Chase M. Boolanzes, "here to represent you". John then tells Chase his story.

Only later is it discovered that Chase is actually a police officer, maybe even one with a law degree, who lied about his reason for being in the room.

Obviously, this would be unethical as all hell and any info obtained should be inadmissible (thus, even if he admitted to murder, he'd be a free man), but my question is if this would be enough to bring some kind of charges, possibly criminal, against either Chase or the department in question.

Please do not turn this into a bash of either LE or attorneys.

Thanks in advance for what I hope to be an interesting discussion.

Blessings,
Bill

 

[shibumiseeker]

Representing oneself as counsel? I believe that unto itself is against the law, but I await more learned input than my own.

 

[donnie1581]

I think this happened on a TV show. I'm thinking it was "The Closer" but I can't remember. I think a good lawyer could get the statement you made thrown out.

 

[hoosiertriangle]

I don't think there would be any other remedy for the situation you have described other than the suppression of the statements made to the fake attorney. He could still be charged and convicted, just not using the statements made to the fake attorney or any fruits that come from that statement. As an example, if he told the fake attorney that he stashed the murder weapon at X location and the police then retrieved the weapon from location X, the weapon may also be suppressed. It would depend whether or not the police would have likely found the weapon during their normal investigation.

I am an attorney, but I'm not your attorney. This is not legal advice, just discussion of a hypothetical. I also don't practice in criminal law.

 

[Kirk Freeman]

I think this happened on a TV show

NYPD Blue.

 

[Hooker]

The way things seem to be all turned around backwards these days, I wouldn't be
surprised if some judge allowed the statements to be admissible and sent John Q to jail.

 

[Exodus]

That's why you find a lawyer when you start carrying and only use him. (semi-purple statement)

 

[Bill of Rights]

They'd be foolish to do it because, as hoosiertriangle said, it would make the statements and fruits of them inadmissible, though I can see it being used in some other cases where a guilty verdict is less important than saving a life.

That's why you find a lawyer when you start carrying and only use him. (semi-purple statement)

Ah, but what do you do when traveling out of state and your attorney isn't licensed where you are? Good thought, of course, and personally, God forbid I needed one, I'd only use someone I already knew by reputation prior to the incident, if possible.

I'm still curious if there is any charge that could be levied against the LEO or LEA?

Blessings,
Bill

 

[Kirk Freeman]

Criminally? Lots of maybes, but don't think any PA would do it.

Contempt of court might be a possibility.

I think the remedy should be a suppression of the statements and potentially barring that officer from testifying.

 

[Bill of Rights]

Criminally? Lots of maybes, but don't think any PA would do it.

Contempt of court might be a possibility.

I think the remedy should be a suppression of the statements and potentially barring that officer from testifying.

A contempt charge? How so? Presumably, the fact of what the hypothetical LEA did would have come out long before any dealings with the court... wouldn't it?

 

[Kirk Freeman]

A contempt charge? How so? Presumably, the fact of what the hypothetical LEA did would have come out long before any dealings with the court... wouldn't it?

Potential contempt charge, false statement regarding case:

IC 34-47-3-4
False or inaccurate reporting of case or proceeding

Sec. 4. (a) A person who falsely makes, utters, or publishes any false or grossly inaccurate report of any case, trial, or proceeding, or part of any case, trial, or proceeding is considered guilty of an indirect contempt of the court in which the case, trial, or proceeding was instituted, held, or determined, if made at any time:
(1) after the proceeding commenced;
(2) while the proceeding is pending;
(3) while the court has jurisdiction; and
(4) before the proceeding is fully determined and ended.
(b) If a report described in subsection (a) is made:
(1) pending the case, trial, or proceeding; and
(2) concerning any ruling or order of the court;
the person is considered guilty of an indirect contempt of the court making the ruling or order.

 

[IN_Sheepdog]

Nice Kirk... good read... I like the idea of an Indirect Contempt charge. And then when the LE-A gets put in jail, he basically sits there till the Judge having jurisdiction, decides to let him out...

I would see this as also a possibility of entrapment and or possible civil liability for the Agency.

 

[Liberty Sanders]

As a retired LEO command officer I can confidently say no dice.

Once the detainee has invoked his Miranda rights there can be no interrogation until the subject has had the advice of counsel.

Let's say the masquerading officer is actually an attorney. This is a loophole, right? Nope. If he represents himself as the detainee's attorney he is legally and ethically bound to represent his client's interests, and maintain attorney-client privilege. If he fails to do so he'll be committing a crime, and being disbarred is a certainty. No cop who has gone to the trouble and expense of becoming an attorney would risk this.

If the cop is not an attorney at all, but represents himself to be one, listening to his "client's" story, he'll be practicing law without a license...big trouble. Nothing he learns will be admissible, due to the clear violation of Miranda, and prosecution will be pretty well impossible.

This might make for an interesting twist in a TV crime drama but it has no relation to reality.

 

[Jack Burton]

Link >>>> Tennessee Cops Posed as a Defense Attorney to Get Suspect To Incriminate Himself | The Agitator

 

[Jack Burton]

Another link >>>>> The Straight Dope: What can the police lie about while conducting an interrogation?

 

[mrjarrell]

Link >>>> Tennessee Cops Posed as a Defense Attorney to Get Suspect To Incriminate Himself | The Agitator

Good find! I remember, (now) reading that when Radley originally posted it.

 

[cobber]

Can't find the Tennessee case, is there a link to the opinion? Sounds good though!

 

[Jack Burton]

court case link >>>> http://web.knoxnews.com/pdf/2011/jan/012011monroe.pdf

 

[Bimmer]

NYPD Blue.

It also happen in the movie "the Departed".

 

[JoshuaW]

I think this happened on a TV show. I'm thinking it was "The Closer" but I can't remember. I think a good lawyer could get the statement you made thrown out.

I think a bad lawyer could get that thrown out. I'm sure there would also be some sort of potential lawsuit in there too.

And it happened in The Departed, which is one of my favorite movies of all time. The circumstances were different though, he posed as a lawyer to allow a the criminal to tip off his associates.