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Do You Need an Accident Reconstruction Specialist for Your Motorcycle Accident Claim?

Lawyers like to use accident reconstruction specialists in motorcycle accident claims for one primary reason: You aren’t going to find a more persuasive witness than the laws of physics. And in a best-case scenario, an accident reconstruction specialist for the plaintiff will be able to prove that either (i) the accident was the defendant’s fault, or (ii) for some mysterious reason, the laws of physics failed to operate normally during the accident.

If you were injured in a motorcycle accident claim, that’s pretty much a slam-dunk for your claim. Although not every favorable conclusion reached by an accident reconstruction specialist is as clear-cut as that, given the scientific complexity of many motorcycle accident claims, an expert witness like this might come in handy.

Some Examples of Situations in Which an Accident Reconstruction Specialist Might Be Useful

Suppose, for example, that you slammed into the rear of a truck. Were you following too closely, or did the truck driver stop so suddenly that you couldn’t have avoided the accident? Alternatively, suppose that the defendant’s fault in the accident is clear, but he asserts that the accident was partly your fault because you were speeding at the time of the accident. An accident reconstruction specialist might be able to calculate your speed before you braked.

Who Qualifies as an Accident Reconstruction Specialist?

An accident reconstruction specialist might be someone with an engineering or applied science background, or perhaps a law enforcement official with specialized training. “My uncle Tim who knows all about cars” is not likely to suffice, no matter how skilled he might be. That is, unless he earned formal credentials that can convince the court that he knows what he’s talking about. “Formal credentials” might include an engineering degree, for example, or accreditation form the Accreditation Commission for Traffic Accident Reconstruction (ACTAR).

A skilled lawyer can help you locate an appropriate accident reconstruction specialist. The three most important factors in selecting an accident reconstruction specialist are:

  • Academic credentials;
  • Experience in the field; and
  • Reputation for ability and integrity.

A deficit in any one of these areas could seriously compromise the evidentiary value of using an accident reconstruction specialist.

The Investigation Stage

Before an accident reconstruction specialist does any brain work or number-crunching, he will investigate the accident to gather as much relevant information as possible. His activities might include:

  • Visiting the scene of the accident;
  • Taking note of nearby road signs and signals to identify any confusion or visibility issues;
  • Inspecting any vehicle damage;
  • Reviewing medical records;
  • Examining the police report;
  • Watching surveillance footage of the accident, if any exists;
  • Interviewing witnesses;
  • Examining photographs taken after the accident;
  • Studying debris, skid marks, etc.; and
  • Retrieving data from a truck’s “black box” – which works like a simplified version of a black box on a plane.

The Analysis Stage

Once the accident reconstruction specialist has gathered the necessary data, he will analyze it thoroughly and create various scenarios of how the accident occurred. He may also use complex software programs to re-enact the crash and to determine which scenario is most likely – in light of the evidence. For example, he might:

  • Evaluate the physics of the accident scene by, for example, calculating the speed of the vehicles and their relative positions at different moments during the accident sequence. This could be done by analyzing skid marks, vehicle weight, and friction.
  • Determine impact angles based on damage to the vehicles.
  • Measure post-impact distances traveled by the vehicles and passengers involved.
  • Determine the exact circumstances of the accident and how the injuries occurred.

An accident reconstruction specialist may perform numerous other calculations and reach other conclusions, as necessary, under the particular circumstances.

The Final Report

A final report issued by an accident reconstruction specialist is an important piece of evidence, although its utility is limited by his own credibility. The report may include:

  • A risk analysis, which might help the court to determine whether a given action taken by a driver constituted negligence (remember, however, that the question of negligence is primarily a legal question, not a scientific question);
  • A review of driving errors committed by the defendant;
  • A description of the most likely accident scenarios, along with an estimation of the likelihood of each scenario;
  • An identification of ways in which the accident could have been avoided or rendered less serious at various stages in the accident sequence;
  • A review of regulatory compliance and how it might have affected the accident – if regulatory compliance issues are involved (if poor vehicle maintenance is an issue in the case, for example, or if the defendant was driving on a commercial license);
  • A computer-aided simulation of the crash (using diagrams or 3D animation);
  • A passenger injury analysis based on the movement of the occupants of the vehicle during  the accident; and
  • Other issues that may be relevant in a particular case.

Testimony

Accident reconstruction specialists are considered expert witnesses, and they are usually paid for their services; in fact, they may even earn a full-time living that way. Although you can be almost certain that the opposing party’s lawyer will cross-examine your accident reconstruction specialist and bring to the court’s attention the fact that he is being paid for his services, this does not normally present a serious problem in either civil lawsuits or settlement negotiations.

Nevertheless, many trials boil down to a “battle of the experts” in which both sides retain accident reconstruction specialists who reach opposite conclusions. In that situation, the case could come down to which side’s accident reconstruction specialist delivered the most persuasive testimony or possessed the most impressive set of credentials.

Contact Us Today

If you were hurt in a motorcycle accident that you suspect might have been the fault of someone else (whether another driver, a product manufacturer or a third party), you need to get started pursuing your claim, right away. Contact E. Stewart Jones Hacker Murphy, immediately, either by reaching out to us online or by calling our Albany office to schedule a free case evaluation. We also maintain offices in Troy, Saratoga and Latham.

Nursing Home Sexual Abuse: The Silent Epidemic

Title IX Sexual Harassment

To say that nursing home abuse is a horrifying act is an understatement. The appropriate adjective to describe the nursing home sexual abuse, however, would be “unspeakable” – except that we must speak of it, because it is a tragic reality. The December 2018 case of a nursing home resident who gave birth after having been in a vegetative state for years has finally brought the problem of nursing home sexual abuse to the national attention it deserves.

The problem is not nearly as rare as the relative media silence might suggest. And when the media does peek past the veil, the results are beyond disturbing. A 2017 CNN investigation, for example, found that between 2013 and 2016, the federal government issued more than 1,000 citations to nursing homes for mishandling reports of nursing home sexual abuse.

A Sampling of Recent Cases

The following cases are more or less typical examples of nursing home sexual abuse:

  • In 2014, it came to light that 83-year old Alzheimer’s victim, Sonja Fischer, had been raped at least once by a staff member at the nursing home where she resided. The nursing home had recently received the highest possible quality rating from the Centers for Medicare and Medicaid Services (CMS).
  • In June 2017, 21-year-old, Justin Glenn Ellis, was charged with raping an 88-year-old woman after sneaking into a nursing home in Houston. He is suspected of involvement in several other similar crimes.
  • In August 2017, nursing aid, Luis Gomez, was convicted of six sexual offenses against nursing home residents. The conviction followed multiple “unsubstantiated” allegations against him that allowed him to continue working.

The foregoing examples are just the tip of the iceberg; literally thousands of allegations have surfaced over the past 10 years.

Efforts to Redress the Problem

State and federal governments have moved slowly and haltingly to address the problem that nobody wants to talk about, but changes have been made:

  • A 2011 federal law empowers the CMS to fine individual staff members at nursing homes. It is not only perpetrators who face scrutiny – fines of up to $200,000 can be assessed against staff members who fail to report an incident based on “reasonable suspicion” that abuse has occurred
    • In November 2016 the CMS changed the way it inspects nursing homes to render the results a more accurate reflection of the facility’s actual quality.The Nursing Home Compare database (a national registry of nursing homes) is available to compare Medicare-funded facilities based on the Five-Star Quality Rating System. This database also reports any recent citations issued to a nursing home.
  • A proposed regulation would punish nursing homes that fire “whistleblowers” by withdrawing all federal funding from them.

The efforts that are being made are undeniably admirable, but they are simply not enough. Raising public awareness of the problem, however, holds the promise of effective future reforms.

Why the Problem Has Been Ignored for So Long

Nursing home sexual abuse is particularly difficult to detect and substantiate for several reasons:

  • Nursing home sexual abuse victims often suffer from cognitive disabilities such as Alzheimer’s disease.
  • Nursing home staff frequently lack specific training on how to spot sexual abuse.
  • Nursing homes, fearing lawsuits, burdensome investigations, and even criminal charges, sometimes prioritize their own well-being over the well-being of their residents.

Perhaps the most important factor of all (and one of the most shocking) is that there is no comprehensive national data on the aggregate number of nursing home sexual abuse cases that have occurred nationwide. This lack of data renders the problem difficult to study, much less combat.

Telltale Signs of Nursing Home Sexual Abuse

The following are a few of the tell-tale signs of nursing home abuse. If your loved one exhibits more than one of them, you should be on the alert.

  • Bruises appearing in genital areas, breasts, and thighs
  • Vaginal bleeding without a medical reason
  • Torn or bloodstained clothing
  • Difficulty sitting or walking
  • Depression, emotional withdrawal or moodiness
  • Anxiety in the presence of a caregiver
  • Unexplained sexually transmitted diseases (STDs)

Some of these signs, of course, could be generated by something other than sexual abuse.

What Can Be Done

At the family level, you should be aware of the potential for nursing home sexual abuse, remain vigilant, and dare to think the unthinkable without jumping to conclusions. Remember that anyone inside or outside the victim’s family can report suspected nursing home abuse to New York’s long-term care ombudsman program. In addition, the following initiatives, if aggressively executed, might drastically reduce the incidence of nursing home sexual abuse:

  • Increase the pool of available nursing home staff so that nursing homes will keep the facility well-supervised and so that nursing homes will not be tempted to hire staff with questionable backgrounds.
  • Strengthen federal regulations concerned with the reporting and sharing of information on nursing home staff who have engaged in sexual or other types of abuse.
  • Create a national background check registry to vet applicants for nursing home staff positions.
  • Publish resident and family satisfaction ratings for nursing homes.

Seeking Fair Compensation

Nursing home administrators may be able to escape criminal charges by asserting that “We had no idea that [the perpetrator] would do something like that.” It is a lot more difficult, however, for them to escape civil liability. If the abuser was an employee of the nursing home, the nursing home itself is likely to be held automatically liable for his actions – even if the nursing home administration itself was not at fault. Negligent hiring could be another way of establishing liability.

If the abuse was committed by an independent contractor or by another resident, liability on the part of the nursing home must be shown before the nursing home itself can be held liable. In this instance, a nursing home sexual abuse lawyer may try to prove that the perpetrator was inadequately supervised or that the nursing acted negligently in retaining a particular contractor.

Nursing homes are extensively regulated by New York nursing home regulations and, if the facility accepts Medicaid/Medicare, by federal nursing home regulations. Violation of  nursing home regulations is usually considered automatic negligence in New York, and it will establish liability if the violation resulted in the abuse. Nursing home neglect, as evidenced by bedsores (also known as decubitus ulcers or pressure sores), can also trigger liability.

The Time to Act Is Now

If you suspect that your loved one is a victim of nursing home sexual abuse, time matters. Contact E. Stewart Jones Hacker Murphy either online or by calling our Albany office at (518) 730-7270 to schedule a free initial consultation. We also maintain offices in Troy, Saratoga and Latham.

Change Is in the Air: Proposed Title IX Changes Could Dramatically Impact How Schools Handle Sexual Misconduct Allegations

sexual-assault-gavel

Campus sexual assault, and how schools handle it, is a hot-button political issue that stirs strong emotions on both sides of the debate. The Obama administration issued far-reaching reforms of campus sexual assault policy under Title IX by conditioning federal funding on schools’ compliance with certain reforms. The result was dozens of lawsuits filed by students who were expelled on the basis of adverse results in sexual misconduct grievance procedures.

Schools were caught in a crossfire. If they followed the rules, they were likely to face lawsuits, but if they failed to comply, they would risk losing federal funding. The changing of the guard from the left-leaning Obama administration to the right-leaning Trump administration added to the confusion. Now, Education Secretary, Betsy DeVos, is proposing new changes to the campus sexual misconduct policy.

Obama Era Title IX Reforms: The 2011 “Dear Colleague” Letter

The Obama administration’s “Dear Colleague” letter, issued by the Office for Civil Rights, required thousands of US institutions of higher education to comply with the following guidelines in order to avoid losing federal funding:

  • Apply the “preponderance of the evidence” standard of proof, the standard that is normally used in civil lawsuits. What this means is that a sexual misconduct allegation will be considered proven if the totality of the evidence indicates that the defendant is guilty – at least a 51 percent likelihood of guilt, if one must assign a percentage value to this standard.
  • Allow accusers to appeal “not guilty” findings; a result that would place the accused in “double jeopardy” according to some jurists.
  • Accelerate the adjudication process to keep it within 60 days, if possible.
  • Prohibit the cross-examination of accusers. Although this particular prohibition was strongly suggested rather than required, it could be treated as a requirement by institutions that fear the loss of federal funding.

Many colleges and universities resorted to the “single-investigator model.” This is where a single person would interview the accuser, the accused, and any witnesses, and then draft and submit a report that issues findings and recommendations.

Doe vs. Baum: The Sixth Circuit Court of Appeals Decision

The first rumblings of change came out of the US Sixth Circuit Court of Appeals in the case, Doe vs. Baum, which was an appeal of a 2017 case that was originally filed with the US District Court. The court in Doe vs. Baum ruled that the due process rights of a University of Michigan student were violated when he was expelled after being found responsible for sexual assault without the opportunity to cross-examine his accuser.

According to the opinion, “Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives.”

University of Michigan President, Mark Schlissel, expressed the University of Michigan’s opposition to the ruling in no uncertain terms. Since the ruling was based on the U.S. Constitution, however, its authority is superior to the authority of the 2011 “Dear Colleague” letter. Because of the Sixth Circuit Court of Appeal’s limited jurisdiction, however, it only applies in Michigan, Ohio, Kentucky, and Tennessee.

Proposed Changes

The following are some of the proposed changes to the application of Title IX to campus sexual misconduct allegations:

  • Schools would only be required to respond to an actual report of sexual misconduct. In other words, they would no longer be considered obligated to respond because they “knew or should have known” about an allegation or an incident. Even if the new guidance passes, however, schools will not be limited to responding to formal complaints. Their obligation to respond could still be triggered, for example, by multiple verbal complaints to a responsible university official about the same individual.
  • Schools would not be required to respond to incidents that occurred off-campus (at a local bar, an off-campus park, or in an off-campus “student ghetto” area, for example). Should a school choose to narrow its own jurisdiction by not responding to off-campus incidents, the alleged victim would be required to contact the civil authorities, such as the police, in order to file a claim.
  • The definition of “sexual harassment” would be considerably narrowed. Under the Obama administration guidance, sexual harassment was defined as “unwelcome conduct of a sexual nature.” This has been criticized as so vague that it could be interpreted to include even a polite request for a date. Under the proposed new guidelines, sexual harassment would be redefined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
  • Schools would be allowed to apply a stricter standard of proof known as “clear and convincing evidence” to sexual assault grievance proceedings. “Clear and convincing evidence” is a higher standard of proof than the “preponderance of the evidence” standard required by the Obama administration, but it is still a much lower standard of proof than the “beyond a reasonable doubt” standard that applies to criminal prosecutions.
  • Mediation would be allowed in sexual misconduct cases.
  • The school would be required to allow the accused student to retain an adviser with the authority to cross-examine the accuser. This proposal has drawn strong criticism from victim’s advocate groups.

At the time of this writing, these changes have not yet gone into effect. Although they may never go into effect without amendment, it is likely that whatever guidance does eventually go into effect will not be radically different than what is being proposed right now.

If You Need Someone to Fight for You…

At E. Stewart Jones Hacker Murphy, we fight to win – and we absolutely will not allow anyone to take advantage of you. If you have been accused of a crime or other misconduct, the time to retain an attorney is now. The more time we have to prepare your case, the more we will be able to help you. Fill out our online contact form to schedule a free initial consultation, or give us a call at one of our offices in Albany, Troy, Latham or Saratoga.

Important Legislative Update

legislative updateThis morning, Governor Cuomo signed the Child Victims Act into law. The legislation ensures that abusers can be held criminally and civilly accountable by extending the time in which survivors of childhood sexual abuse can seek justice. Under the old law, child sexual abuse offenses could not be prosecuted more than five years after their occurrence and civil lawsuits for this conduct had to be brought within three years of the victim’s 18th birthday.

The new legislation:

  1. Increases the amount of time during which perpetrators of these crimes may be held criminally accountable;
  2. Allows victims of these crimes to commence a civil lawsuit at any time before they reach 55 years of age;
  3. Provides victims whose claims have been time-barred a new opportunity for their day in court by opening a one-year window for them to commence their action;
  4. Eliminates the need to file a notice of claim for sexual offenses committed against a minor;
  5. Requires judicial training with respect to crimes involving the sexual abuse of minors;
  6. Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of revived actions.

The revival period for otherwise time-barred claims commences six months after today’s enactment and lasts for one year.

We are grateful to the sponsors, Assemblywoman Rosenthal and Senator Hoylman, the Legislative Leaders, Speaker Heastie and Majority Leader Stewart-Cousins, and Governor Cuomo for their leadership on this issue and commend them for taking a strong stand in combatting child sexual abuse.

A Second Chance for Nonviolent Drug Offenders: Federal Criminal Justice Reform Bill Signed into Law by President Trump

DWI legal defenses

Something akin to a miracle occurred recently: Congress passed significant legislation with broad bipartisan support. The awkwardly-named “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” or FIRST STEP Act (the “Act”), was signed by President Trump on December 21, 2018.

The new legislation is designed to improve federal prison conditions, allow for the early release of certain inmates, and eliminate some of the more severe consequences of federal mandatory minimum sentencing. It applies to the federal prison system, not the state prison system, where most of the nation’s inmates are housed.

The reasons for the broad bipartisan support that this law enjoyed included prison overcrowding, concerns about the mass incarceration of nonviolent drug offenders, and the shockingly high rate at which released prisoners re-offend (known as the recidivism rate). The following is a description of some of the primary features of the Act.

Reduction of “Mandatory Minimum” Sentences for Non-Violent Drug Felonies

Mandatory minimum sentencing for drug offenders, first introduced by the Anti-Drug Abuse Act of 1986 in response to crack cocaine epidemic, limits the sentencing discretion of trial judges once a defendant has been found guilty of a crime (typically a drug crime) for which mandatory minimum sentencing applies. This system has been widely criticized for:

  • Draconian sentencing, including life in prison in some instances, for non-violent drug crimes, regardless of mitigating circumstances;
  • The huge disparity in sentencing between those caught with crack cocaine and those caught with powder cocaine;
  • Racial disparities in sentencing, particularly to the disadvantage of African-Americans; and
  • Mass incarceration and prison overcrowding as prisons become packed with drug offenders.

The FIRST STEP Act raises the bar for imposing mandatory minimum sentences for repeat offenders. To qualify as a prior offense, the offender must have actually been sentenced to 12 or more months of incarceration instead of simply having been convicted of an offense for which 12 or more months incarceration could have been imposed. It also institutes a “lookback period” of 15 years in the past, beyond which, prior offenses will not count against the defendant.

The FIRST STEP Act reduces these mandatory minimums in some instances. It reduces the mandatory minimum sentence of third-time offenders from life imprisonment to 25 years, for example, and it reduces the mandatory minimum sentence for second-time offenders from 20 years to 15 years.

It’s not all sunshine and roses for drug offenders, however. The law also adds violent offenses to the types of offenses that will be considered prior offenses, so that drug offenders with a history of violence will not be able to easily evade mandatory minimum sentences. Significantly, most provisions of the Act are not retroactive – most people who have already been sentenced under the old law will not be able to take advantage of the Act’s provisions.

Broadening of the Mandatory Minimum “Safety Valve”

The “Safety Valve” was introduced at the federal level in 1994 to reduce the number of drug offenders subject to mandatory minimum sentencing. The Act increases the number of “criminal history points” that an offender can accumulate without triggering mandatory minimum sentencing. Criminal history points are assigned to a defendant based on previous convictions, and they increase with the length of the sentence imposed, particularly if violence was involved.

Miscellaneous Provisions

The Act contains many provisions designed to relax overly harsh prison conditions that social scientists point to as one of the main causes of recidivism.

  • Placement of prisoners near their families to allow for more convenient visitation.
  • Expansion of the Elderly Home Detention Program, which provides an alternative to prison life for elderly prisoners.
  • Relaxation of the standards for “compassionate release” (for prisoners diagnosed with terminal illnesses, for example).
  • Mandatory de-escalation training for prison guards to reduce the incidence of violent altercations.
  • The introduction of medication-assisted treatment for opioid abuse (methadone, for example).
  • Restrictions on the imposition of juvenile solitary confinement.
  • Restrictions on the use of restraints on pregnant female inmates.
  • The establishment of recidivism risk programs for prisoners, with incentives provided for successful participation that include more time spent in home confinement, halfway houses, or supervised release rather than in prison.
  • A massive increase in the type of data that the Bureau of Prisons is required to provide to the National Prisoner Statistics Program, which could help provide a rational basis for further criminal justice reform.

A Look Ahead

The First Step Act is intended the way it is named: as a first step, not an ultimate solution. Although crime has fallen in recent decades, it has come at a high price. About 2.3 million people are incarcerated in the United States – about the same number of people that live in Houston and about 22 percent of the world’s total prison population. The United States “land of the free” boasts a prison population nearly twice as large as China, the world’s second most prison-happy nation.

An appropriate “Second Step Act” should address recidivism. A convicted drug dealer, for example, unable to secure employment after being released from prison, is likely to return to selling drugs simply to make ends meet. It might be appropriate, then, to allow non-violent drug offenders an easier way to expunge their criminal records so that they can secure employment and leave their old “profession” behind.

State prisoners are at least as overcrowded as federal prisons for many of the same reasons. Hopefully, state governments will follow their federal counterparts and enact the same or perhaps even more far-reaching criminal justice reforms (some states already are). Ultimately, only time will tell.

Let Us Help You Fight Back

Although a criminal prosecution works something like a war, it is not a war that you will necessarily lose if you know how to fight back. And at E. Stewart Jones Hacker Murphy, we know how to fight it. If you have been charged with a crime, call our Albany office at (518) 730-7270 or contact us online to schedule a free initial consultation. We also maintain offices in Troy, Saratoga and Latham, and we can even visit you in jail.

E. Stewart Jones Hacker Murphy LLP recognized as a 2019 “Best Law Firm” by U.S. News & World Report

2019 Best Lawyers US News & World ReportThe Capital District Law Firm of E. Stewart Jones Hacker Murphy LLP was recognized as a “Best Law Firm” by U.S. News & World Report for 2019.

Seven of the attorneys at E. Stewart Jones Hacker Murphy LLP have been recognized by “Best Lawyers in America” for 2019 in 8 different practice areas. Additionally, U.S. News and World Report has recognized the firm as of the best law firms in the country, ranking “Tier 1” in seven of its major practice areas after a rigorous evaluation process.

the JonesHacker teamFor the 2019 Edition of “Best Lawyers in America”, Attorney’s E. Stewart Jones, Jr., James E. Hacker, John F. Harwick, Patrick L. Seely,Jr., Meghan R. Keenholts, Ryan M. Finn, and Michael W. Kessler, have been recognized for providing exceptional services for the people of Troy, Albany, Latham and Saratoga Springs, New York, in a wide variety of legal practice areas, including:

Bet-the-Company Litigation, Commercial Litigation, Criminal Defense: General Practice, Criminal Defense: White-Collar, DUI/DWI Defense, Legal Malpractice Law-Plaintiffs, Litigation-Insurance, Litigation-Real Estate, Mass Tort Litigation / Class Actions-Plaintiffs, Medical Malpractice Law-Plaintiffs, Personal Litigation-Plaintiffs, Product Liability Litigation-Plaintiffs.

If you are in need of an attorney for a personal injury, criminal defense or litigation case, contact E. Stewart Jones Hacker Murphy LLP at www.joneshacker.com 518-274-5820.

Dirty Tricks the Police Use Against Criminal Suspects

Troy, NY, Criminal Defense Law Firm

If the police suspect you of committing a crime and seek you question you, remember that you have a constitutional right to remain silent. That means that if you tell the police you don’t want to talk to them without a lawyer present, they are obligated to stop questioning you until your lawyer arrives.

You should definitely invoke your right to silence, because the police are full of dirty tricks that they use to elicit damaging answers from you, along with other questionable tactics that they can use against you even if you do refuse to talk to them. Please see the following examples.

Interrogation Techniques

“Your accomplice already told us everything – so you might as well just ‘fess up’ and make it easy on yourself.”

Don’t fall for it. He may have, or he may not have. If the police manage to secure a confession from you this way, it can be used against you even if it was based on a lie. Although you have a constitutional right not to be subject to compelled self-incrimination, most forms of “confession by trickery” are not considered “compelled.”

“We found your fingerprints at the scene of the crime”

Maybe they did, and maybe they didn’t. The same tactic is at work here. If they can get you to confess (even if you are innocent and you are confessing in the hope of a lenient plea bargain), your confession can be used as powerful evidence against you. Recanting your confession later will only make you look dishonest.

“Would you like a glass of water?”

Drinking a glass of water will leave a small sample of your saliva on the container, and saliva contains your DNA. If the police don’t have enough evidence to compel you to submit to a DNA test, don’t give them a gift by leaving your DNA on a drink container.

“The polygraph test results prove you’re lying.”

It’s easy for the police to rig a fake polygraph test that they can then interpret to “prove” you are lying. In any case, it is very difficult to admit a polygraph test into evidence in a criminal prosecution – even fairly administered tests are notoriously unreliable.

“We have eyewitnesses who saw you at the scene of the crime.”

Demand that the police produce these “eyewitnesses” – if they exist at all. If they are real eyewitnesses, they should be able to identify you in a lineup.

“Things will go much easier on you if you just confess.”

Not quite – on the contrary, things will go much easier on the prosecution if you confess. This is the police, not your priest. If they had enough evidence to convict you without a confession, they probably wouldn’t be asking for it. Confession may be good for the soul, but confessing to the police is likely to result in incarceration, not forgiveness.

Implying that refusing to answer their questions amounts to “obstruction of justice”

Destroying evidence is obstruction of justice. Coaching a witness on how to lie under oath is also obstruction of justice. Refusing to answer the police’s questions is not obstruction of justice – in fact, it’s your constitutional right. If the police begin to question you, tell them you cannot answer any questions unless your lawyer is present. Technically, they cannot use any of your answers against you anyway unless they have “read you your rights” (but don’t count on that).

The good cop/bad cop routine

Most people are familiar with this one. The job of the “bad cop” is to intimidate you, while the job of the “good cop” is to soothe you into confessing or giving consent to a search. This consent is in order to placate the “bad cop” who might just lose control if you don’t follow the good cop’s advice. This is when you really need legal representation. And believe us, we know exactly how to play the “good lawyer/bad lawyer” routine with the prosecution.

“This is strictly off the record” – but your conversation is being secretly recorded anyway

“He told me this conversation was off the record” is no defense against a prosecution based on a confession – unless the confession was made to your lawyer. In that case, it absolutely cannot be used against you as long as you told it to your lawyer with the expectation of confidentiality, which covers almost any lawyer/client communication.

Other Sneaky Tactics

Bugging your jail cell and recording your conversation with your cellmate

The police don’t need a warrant to record a conversation between two people as long as one of them consents to being recorded. If you find yourself in jail with a cellmate, don’t talk about your crime. Assume that everything you say is being recorded.

Digging through your garbage

The Fourth Amendment protects you against unreasonable search and seizure. This means that a warrant is required, supported by probable cause, to invade your privacy by, for example, searching your bedroom. Garbage, however, is considered abandoned property, and people are not thought to have a “reasonable expectation of privacy” in their garbage. Be careful what you throw away if some of your garbage might make you look guilty.

Searching your property using a police dog who “reacts” in very subtle ways

The reaction of a police dog trained to sniff for drugs can be used as probable cause to, for example, open the trunk of your car. But exactly what constitutes a “reaction”? Barking and snarling would probably do. But police can train dogs to “react” in ways so subtle that you might not even notice it. What if the police simply want to conduct a warrantless search of your car trunk? They could bring a police dog and claim that he “reacted” (when in fact he didn’t) as a pretext for searching your trunk.

Don’t Take Chances with Your Future

If you have been charged with a crime, your life could be turned upside down. And without proper legal representation, you could be convicted or railroaded into a plea bargain – even if you are innocent. Missing a critical deadline, for example, could put you in a very disadvantageous position. You need someone in your corner, right now.

A criminal prosecution is a war, and at E. Stewart Jones Hacker Murphy, we fight to win. If you have been charged with a crime or if you are being investigated for one,contact us today to schedule a free initial consultation by phone, at our office in Troy, or even in jail.