SHOULD YOU GIVE A STATEMENT TO THE POLICE IF ARRESTED?

In my opinion, there are two responses, and only two responses (or slight variations on these responses), that a person under arrest should give when questioned by the police.  First, a suspect could say “I am not going to say anything,” or “I respectfully decline to say anything.”  There is no reason to be impolite or to curse.  A person does not have to drop the “F bomb” to the police before they realize they are wasting their time. 

Second, a suspect could say “I want to talk to my lawyer before I say or do anything.”  The U.S. Supreme Court has ruled that a suspect’s demand for an attorney must be unambiguous and that right to an attorney can be waived without clearly demanding an attorney.  Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  So the suspect must be clear that they will not give a statement without first speaking to their attorney.  If the suspect does not have an attorney, then he can say he wants to speak with his public defender or whoever is hired for him first.

I am always amazed when people confess to crimes, particularly when it is previously convicted felons confessing to crimes.  In some cases, the person confesses within minutes of being arrested.  This makes the defense attorney’s job much harder and sometimes can make a valid defense worthless.  For example, suppose a person is arrested for murder but adamantly denies ever touching a gun on the night the person died.  Then, after speaking with a defense attorney it appears that the case is custom made for a self defense strategy.  To claim self defense, though, the defendant will have to change his story.  He will have to admit to using the gun.  In other words, he will have to admit that he lied in his statement to the police.  Put yourself in the jury’s shoes.  They don’t know what happened.  They were not there.  They can’t tell if the defendant is telling the truth or not.  They only thing that they can know for sure is that the defendant is willing to lie when it serves his purposes. 

There are several reasons, only some of which are listed in this blog post, to not give a statement.  First, giving a statement is giving evidence against oneself.  Even if the defendant denies any wrongdoing, a prosecutor can still use the statement.  Anything the defendant says can be used against him if it conflicts with what he says at trial.  It can also be used if it conflicts with other people’s accounts of what happened.  So even if the defendant keeps his story consistent, his credibility can still be questioned when his story conflicts with other witnesses’ testimony. 

Second, the defendant will get nothing in return for giving the statement.  He will not be released from jail for cooperating.  He will not get more favorable treatment from either the police or the prosecutor for giving a statement.  The judge will not give him a more lenient sentence for confessing.  (In federal court there is an advantage to accepting responsibility for an offense but that is long after being questioned by the police.)  So, there is no benefit to confessing.  If the defendant wants to clear their conscious, then they should do so with their attorney. 

Third, giving a statement locks in the defense theory.  As pointed out in the hypothetical, the denial of touching a gun used in a murder case may make a self defense theory impossible.  Perhaps the defendant acted in self defense.  Maybe the defendant went overboard and used excessive force.  This could make the lesser charge of second degree murder charge a possibility.  The statement about not touching the gun, however, can lock in the defense and make a self defense strategy difficult and in some cases impossible. 

Fourth, a defendant may unintentionally confess.  Some detectives are very skilled interrogators.  They really know what they doing.  I have seen a suspect initially denying any wrong doing.  By the end of the interview, he was saying that he would apologize to the victim if she were present.  He did not mean to confess.  He just felt sorry for her and what she had been through but not because he caused any of her problems.  Once he said that, though, it did not matter.  He was caught and later he was forced to plead guilty. 

Fifth, if the police and the prosecutor believe that the defendant lied in his statement to prevent his prosecution, then the prosecutor could charge him with obstructing justice.  The elements of this charge are that a person provides false information to prevent their prosecution or the prosecution of another person.  The most common example of this is when a person lies to the police about who they are by giving a false name because they fear that there is an outstanding bench warrant for their arrest.  Any false information given to prevent a person’s prosecution, however, could lead to this charge.  A defendant may compound his problem by trying to talk his way out of being arrested.  Instead of talking his way out of a charge, he may talk himself into an additional felony charge of obstructing justice.

I have a friend who has contacted me several times over the years about his family members or friends who have been arrested.  His question is always the same:  what should I tell the person under arrest to do?  My answer is always the same:  Tell them, “DO NOT GIVE A STATEMENT.”

If you have a question about legal representation, check out my website to see if it is an area of law that I could possibly help you.  Here is a link to my website:  http://www.ellislawfirm.pro/

JUST ANOTHER WAY INSURANCE COMPANIES TAKE ADVANTAGE OF THEIR INSUREDS

Amerisure Mut. Ins. Co. v. Global Reinsurance Corp of America, 399 Ill. App. 3d 610, 927 N.E.2d 740, 340 Ill. Dec. 1 (1^st Dist. 2010). 

Section 155 of the Illinois Insurance Code provides for penalties if an insurance company unreasonable delays in paying, or denies, a valid claim.  One of the most significant penalties under section 155 is forcing the insurance company to pay the insured’s attorney’s fees.  The insured is the person or party who purchases insurance and expects to be covered by the insurance.  In the Amerisure case, there was such a lengthy delay that the insured sought relief by taking the matter to arbitration, which was required by the reinsurance policy.  The reinsurance company, Global, was found to be unreasonable and the arbitrator awarded a little over 1.5 million plus interest and attorney’s fees of over $861,000.00.  Global paid the 1.5 million and interest but refused to pay the attorney’s fees.  Amerisure sued to enforce the arbitrator’s award of attorney’s fees.  The trial court found for Amerisure and ordered Global to pay approximately $861,000.00 in attorneys’ fees.  The appellate court reversed the decision, holding that arbitrators lack the authority to award attorney’s fees and that only a court could award such fees.  The Supreme Court of Illinois refused to hear the case.  So, in other words, the plaintiff in this case had to pay their attorneys over $861,000.00, which was over half of what they were entitled to receive, to force Global to honor its contractual obligations.

Here is my problem with this.  There is no incentive or reason for insurance companies to not put in their contracts that arbitration is required in all first party claims and then force all claims to go to arbitration.  Most people would give up long before then and the insurance companies would not have to pay off legitimate claims.  I do not think that all insurance companies would force their insureds to take them to arbitration before paying claims because this would lead to a backlash against the insurance industry.  It is foreseeable, though, that insurance companies may become more unreasonable in denying claims or delay in paying claims if the insured must take them to arbitration and then the insurer would only have to pay the amount they were contractually obligated to pay plus a little interest.  If attorney’s fees can be avoided, many people would say that it just cost too much to fight the insurance company and abandon legitimate claims.  Since the remedies provided by section 155 are the only remedies available to insureds making a claim on their own policy, I think that it is merely a question of when, as opposed to if, insurance companies will require all denials of first party claims to be arbitrated and then to deny all first party claims. 

I have successfully sued insurance companies for violation of section 155 and I am currently involved in cases against insurance companies.  If your insurance refuses to pay a claim which you believe is a legitimate claim, give me a call and I will be happy to take a look at it.  To see what areas of law I practice, visit my website at:  http://www.ellislawfirm.pro/.

HOW HAVING TOO MUCH CASH CAN BE A BAD THING

Amazingly, a federal appeals courts forfeited cash holding that the possessing, carrying, or transporting a large sum of cash creates a strong suspected connection to drug trafficking.  U.S. v. $124,700 in U.S. Currency, 458 F.3d 822 (8th Cir. 2006).  In the case of U.S. v. $124,700 in U.S. Currency, a Hispanic man was stopped for speeding on I-80 in Nebraska.  The $124,700 was found in a cooler in the rented vehicle the man was driving.  The trial court found that there was insufficient evidence to prove, by a preponderance standard, that the money had a substantial connection to drug trafficking.  The court found the explanation the man offered as plausible.  The appellate court reversed in part because “Possession of a large sum of cash is “strong evidence” of a connection to drug activity, …” U.S. v. $124,700 in U.S. Currency, at 826.  The dissent noted “that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money. There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of drug use or distribution.”  U.S. v. $124,700 in U.S. Currency, 458 F.3d at 827.  The dissent went on to criticize the majority’s decision by pointing out that other decisions within the district had rejected similar forfeiture arguments when there was an insufficient nexus, or connection, between the money found and drug activity.  A police dog alerted to the presence of drugs on the currency and the exterior rear portion of the rented car.  As the dissent points out, however, this was a rental car which undoubtedly had been used by several people.  Had drugs been used near the rear of the car, there is no way to determine who used the drugs.  Additionally, it common knowledge that most currency has trace amounts of narcotics on it.  The dissent pointed out that this fact was recognized by the Justice Souter in a recent case.

            I think that this violates a person’s Fifth Amendment rights, due process rights, and possibly equal protection.  I think that the problem in this case is that the police and the appellate court looked at suspicious activity and allowed the police to forfeit the money despite insufficient evidence to connect the money to any illegal activity.  As a former prosecutor, I have heard cops talk about suspecting someone committing crimes but not being able to prove it.  That is the situation we have here but instead of the cops not being allowed to take action, the court endorses the cops to forfeit money without sufficient evidence that the money is connected to any illegal activity.  This creates an odd situation where the cops are like highway bandits who can stop you and take your money and the courts will support the cops if the amount of money is large enough.  Finally, I cannot ignore that this was a Hispanic man stopped in Nebraska.  I think that if this were a white man in his 50’s, then the forfeiture would have never occurred.  Therefore, be warned that by carrying or transporting large sums of money, you risk losing it.  To see what areas of law I practice in, visit my website at http://www.ellislawfirm.pro/. 

       

LOSING OUR RIGHTS

The law requires that when the police serve a search warrant, they must knock and announce themselves and only if there is no response can they break into the house.  Of course this does not apply to “no-knock” warrants where the police are authorized to enter without any prior notice.  The “no-knock” warrants are authorized based upon a showing that there is a reasonable belief that there is some danger to the officer’s safety or that evidence would be destroyed.  Before 2006, if the police violated a person’s rights by ignoring this law and busting into someone’s house, then the evidence would be excluded under the exclusionary rule.  The U.S. Supreme Court changed that with its decision Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159 (2006).  Supreme Court Justice Antonin Scalia, who wrote the majority opinion, held that the cost of losing evidence was too great and the threat of civil lawsuits would deter police misconduct.  Before the Hudson decision, the requirement that police officers must knock and announce themselves before entering was not only a federal statute (18 U.S.C. § 3109) but was part of common law, or judge made law, going back to before this country was founded.  As Justice Breyer wrote in his dissenting opinion:   “Today's opinion is thus doubly troubling. It represents a significant departure from the Court's precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection.”  Hudson v. Michigan, 547 U.S. 586, 605, 126 S. Ct. 2159, 2171 (2006).  This appears to be merely another traditional right which has fallen under the current conservative U. S. Supreme Court which is composed of conservative judicial activists, ignoring precedent when it suits their political ideology.  Scalia’s opinion that potential civil lawsuits would be a deterrent is wholly unrealistic because of the difficulty in being successful in civil lawsuits against police.  Ellis Law Firm has sued police departments, with great success, for violating someone’s civil rights.  Those cases are very difficult, though, due to the conservative nature of Supreme Court decisions involved in suing police officers and the cities they work for.  Without apparent physical damages, as in an excessive force case, I would be reluctant, as would nearly every other law firm, to take on such a case.  If law firms are unwilling to take on the challenge of suing police departments when there is little reward for all their trouble, then the threat of civil law suits would not serve as a deterrent to police abuses.  Therefore, Scalia’s opinion undermines the remedies people have when the police break the law requiring they knock and announce before entering your home.  To see what type of cases I focus on, check out my website at:  http://www.ellislawfirm.pro/

Punishing Minor Consumption by Suspending Their Driver's License

On June 24, 2010, the Supreme Court of Illinois held that a statute which requires a 90 day driver’s license suspension for underage drinking is constitutional even though no motor vehicle was involved.  The statute is 625 ILCS 5/6–206(a)(43).  The Court held that “The legislature may reasonably determine a young person consuming alcohol under the legal age may also drive after drinking.”  People v. Boeckmann, 238 Ill. 2d 1, 11, 932 N.E.2d 998, 1004, 342 Ill. Dec. 537, 543 (2010).  While it is true that someone under 21 may drive after drinking, it is equally possible that the same person may choose to not drive after drinking.  Suppose a teenager goes to a party, gets drunk, and then calls his/her father or mother to pick him/her up.  The parent is involved in an accident through no fault of their own.  When the police arrive, they speak with the teenager and realize the teenager is drunk.  The police then cite the teen with underage drinking.  In addition to paying a fine for the underage drinking, that teen would lose his/her driving privileges for 90 days, pursuant to 625 ILCS 5/6–206(a)(43).  In reaching this decision, the Court overturned the trial court’s decision holding the statute unconstitutional and decided to not follow a precedent set forth in the case of People v. Lindner, 127 Ill. 2d 124 (1989).  The Court in the Lindner case struck down a statute revoking a person’s driving privileges when convicted of sex offenses where there was no connection to a motor vehicle.  Two of the Justices announced that they thought Lindner was incorrectly decided to the extent it held a revocation or suspension of driving privileges must be connected to a motor vehicle.  Obviously I do not advocate underage drinking and driving.  Certainly no one is arguing for more rights for sex offenders.  With all due respect to the Supreme Court of Illinois, punishing people by taking away their driving privileges when the crimes committed have nothing to do with driving is wrong.  It puts a burden on the individual and upon employers, who may lose well trained workers.  The Boeckmann decision takes away a teenager’s right to drive, which the teenager has earned, because the possibility exists of a teen making a bad decision to drive and if the teen decided to drive, the further possibility that the decision will harm someone.  The Boeckmann opinion fails to consider that the teens who make the bad decision to drink and drive may be just as likely to drink and drive even if they do not have a license.  In those cases where a teenager will drive despite having a suspended license, the Boeckmann decision accomplishes nothing.  So, as a word of advice to anyone under the age of 21 in the State of Illinois, do not drink any alcohol under any circumstance unless you want to risk losing your driving privileges for three months.  For more information about DUI's, see http://www.ellislawfirm.pro/

CONVICTING THE INNOCENT

Can you be convicted of crime that you did not know you were committing, even if you had no intention of committing a crime?  Unfortunately, yes you can.  People v. Stanley, 921 N.E.2D 445 (1^st Dist. 2010).  The First Appellate District Court decided in 2010 that a person did not have to have knowledge that a gun was defaced to be prosecuted for possessing a defaced gun.  Instead, they ruled that the person only had to knowingly possess a gun.  This basically approves of punishing someone who, in my opinion, lacked the appropriate, and required, mental state, or knowledge that they were committing a crime.  Without the appropriate mental state, no crime has been committed.  In my opinion, this allows the punishing of the innocent.  The court relied upon another case, People v. Ivy, 133 Ill. App. 3d 647, 479 N.E.2d 399 (5^th Dist. 1985).  The Ivy case dealt with a woman who possessed a sawed off shotgun.  The court held that the prosecution did not have to prove that the woman knew that the gun barrel was the appropriate length as required by statute.  In the Stanley case, however, the defendant was charged with possessing a defaced gun because the identification marks for the gun had been scratched off.  As a practical matter, the Ivy case is more troubling because it would be difficult for most people to know the precise gun barrel length by merely looking at it.  This is not true for the Stanley case.  So long as one can see, whether the serial numbers identifying the gun were scratched off can be determined with minimal effort.  If the defendant in Stanley had not noticed serial numbers were scratched off, however, then, to the best of his knowledge, he was merely possessing a gun and not a defaced gun.  But any person could check for serial numbers.  I have less of a problem with the law imposing the requirement that a gun owner has to look for serial numbers or risk being charged with possessing a defaced gun.  It is a much bigger deal to be required to look up the law on how long a gun barrel must be and then forcing the owner to measure the gun barrel.  The gun owner should probably also look up case law to if courts have adopted a single definition as to how the gun barrel should be measured.  Does the measurement extend back to the firing pin?  Is it only the visible part of the barrel because some gun barrels are covered by wood stock?  There is clearly a danger of punishing the innocent in cases like these.  It is one thing to be “tough on crime.”  That is not the duty, however, of the court which must be fair and impartial.  It is a miscarriage of justice to punish the innocent for the sake of appearing tough on crime.  I am not familiar with the facts of either the Stanley or the Ivy case to know what was just in either case.  The holding in both cases, though, opens the door to punishing someone who never intended to break the law.  http://www.ellislawfirm.pro/ 

TOUGH CASES MAKE BAD LAW

Insurance company exemptions allow insurance companies to avoid their contractual duty to provide coverage.  There is a saying that the insurance company policies provide coverage in the first couple of pages and then the rest of the policy takes away that coverage.  Although an accident may be a covered event under the insurance policy, the exemptions in the policy can allow the insurance company from being required to pay on a claim.  A good example of this is the case of American Standard Insurance Company of Wisconsin v. Slifer, 395 Ill. App. 3d 1056, 919 N.E.2d 372, 335 Ill. Dec. 653 (4^th Dist. 2009).  In that wrongful death case, a hit and run driver killed a man in 2002.  He did not report it to his insurance company despite the insurance policy requirement of prompt notification of an accident.  Five years later, Slifer confessed to the police.  He was sentenced to 14 years in prison.  Since he did not comply with the policy requirement to notify the insurance company promptly, the insurance did not have to indemnify, or pay for, any judgment for wrongful death against Slifer.  Unless Mr. Slifer became independently wealthy, which is unlikely given his prison sentence, the party that suffers would be the family of the person Mr. Slifer killed.  While insurance companies should be allowed to protect their monetary reserves, the result of this decision will adversely impact the victim’s family.  The one thing we can be sure of is that the insurance company would be allowed to keep all of the premiums Mr. Slifer paid without having to pay for his wrongdoing. 

There is a saying that hard cases make bad law.  This is clearly a hard case.  No matter how it is decided, it is going to be unfair to one of the two parties, the insurance company or the victim's family.  It would be unfair to the insurance company to have to defend and then indemnify someone when an accident goes unreported for five years.  But denying compensation to the family also seems unfair.  So we are left with a choice in cases like this:  who should bear the brunt of this unfair situation?  Both parties are blameless.  One could argue that the insurance company got the premiums for the coverage and so they should not use this exemption to deny coverage.  Conversely, one could argue that the victim's family is not without some measure of justice as Mr. Slifer is serving a prison sentence of 14 years.  I can't say that the case was decided incorrectly but I think that the insurance company could bear the inherent unfairness of this situation better than the victim's families.  What do you think should have happened?  http://www.ellislawfirm.pro/