Andy Marcantel
On today's episode of Fighting the State, we're talking about the really important process of pretrial interviews. You're not going to want to miss this. Stay tuned. This is attorney Andy Markell and attorney Mark J. Victor. We're the partners at the Attorneys for Freedom Law Firm here today with the new installment of fighting this date. How's it going, mark?
Marc J. Victor
Fantastic man. Love doing this series. Love the information we're putting out there. This
Andy Marcantel
Is the easiest thing in the world for us to talk about. This is Just another day in the office. It's exactly literally earlier today when sitting down with new clients coming into firm. This is exactly the type of thing that I talk to them about. This is the type of thing that we educate people about that we give speeches about. So talking about it one-on-one in a video, it's nothing different. Nothing new here.
Marc J. Victor
The hard part is trying to keep it less than an hour.
Andy Marcantel
Yeah, it's our staff that keeps reminding us and they're waving their arms frantically whenever these videos run an
Marc J. Victor
Hour, they're telling us, Just shut up. Just shut up.
Andy Marcantel
Crazy. And if they were the cops, then I would heed that warning. But we're two lawyers and we like to talk, talk about this stuff. So interviews, I've been looking forward to this episode because there's so much strategy when you have a trial coming up, you're in the thick of it. Now we're in the middle section of the criminal process. As we talked about in a previous video. We're past the question of pretrial release. We're not quite to the crossroads where we're deciding do we have a good agreement on the table to maybe settle the case with the state or are we setting the thing for trial? No, we're in the middle. We're in the thick of it. This is when we're filing motions. We're getting discovery. And a big part of the discovery is interviews.
Marc J. Victor
People who have been watching this series from the beginning might remember when we talked about pretrial, one of those things. And it went by I'm sure pretty quick where we talked about why it might make sense to get an attorney on board even before you're charged. Sometimes we are able to get some interviews done before the case is even charged. Why is that important? Well, I'd rather interview somebody before the prosecutor gets a chance to talk to them and they get an opportunity to
Andy Marcantel
Review the court. They stand paper, the witness, as we may
Marc J. Victor
Say. That's one way to say it. Yeah, it's nice to get them before by the other side. We wouldn't do any such thing on our side. Of course not sandpaper. No, we're Just trying to get the actual information. But putting the information in one light versus putting it in another light is a different thing, right? Absolutely. So sometimes
Andy Marcantel
Framing of the questions and
Marc J. Victor
Everything like that. Yes. The framing of the questions, emphasizing what's really important, what's not so important. Flushing out someone's motivations to do something. If you can get that done early on before you've got a prosecutor sitting on the other side of the table, maybe who's prepped the person for the interview, always better to do it
Andy Marcantel
That way and better to lock them into a version of events and facts before the prosecutor or anybody else for that matter gets a crack at 'em. How the human psyche works, I would Just tend to work as human beings is that first statement that we give. We tend to say, yep, that's how it happened. I'm not wrong about how I described it. I have a good memory about it. That's how it happened. And then also there's the issue of the further away we get from the actual incident, the more likely people's memories are to fade and they start forgetting things. And so it's really important to be proactive on these things. Move in as soon as we can. We've had many cases. In fact, we Just had a big recent one, which was a homicide case in a different state that involved sending an investigator out to the scene. And that investigator locked a number of witnesses in with recorded statements long before a charging decision was even made long before a prosecutor ever cracked the file on the case. We had the recorded statements and they helped our clients. So I'm really glad that we did that. It can make all the difference down the line.
Marc J. Victor
So the other thing to point out here at the beginning is you don't always have a right to interview. And what I mean by a right to interview is if they say, no, I'm not talking to you. You can get a court order that says you got to show up for a deposition. And so on the federal side, you don't have any such, right? You don't get to do pretrial interviews
Andy Marcantel
On the federal. We talked about this before. It's what we think is a deficiency in the federal system because it encourages trial by ambush. That
Marc J. Victor
Doesn't mean you can't ask somebody, Hey, would you mind sitting down? Can I talk to you about what it is? They can always say, yes, sure, no problem. And so it probably wouldn't be accurate to say you can't do interviews in a federal case or in a state where you can't compel somebody to show up for a deposition. But if they're savvy or if the request has to go through the prosecutor, right? Because if the prosecutor has to deliver the message, it's going to be, look, the defense attorney wants to interview you. You don't have to sit down and do an interview. I recommend you, but if you want to, you can. And then I'm going to say, well, I'll Just follow what you say. Since I'm a state witness, I'm on the side of the state. So you're not going to get police officers, you're not going to get people who are in the system. Most of the people who have the information you want to talk to about they're going to decline if you're in the federal system or if you're in a state where you don't have a right to
Andy Marcantel
Interview. And of course, and unless you are compelled by deposition, you're not forced to give an interview and people are confused about this lay people are confused. They think that when the cops come around, even if they're not the target of the investigation, even if they're not the defendant, even if they're a witness or even if they didn't witness anything at all, there's a public misconception about this that when officers come around and say, I want to talk to you, I got some questions for you, that you automatically have to answer the questions. That is not the case. And unless you are compelled in a Jurisdiction that enshrines witness interviews as a right, in those cases, yes you do, but only if you're compelled by the court to do so. And a lot of the times the parties, whether it be the prosecutor or the defense, don't Jump through those hoops. Maybe we strategically don't want that witness. We may know about them and we don't want to hear what they have to say because perhaps we're predicting that it's not going to be favorable to our client. So everybody has the right to Just shut up whether you're in J.eopardy or not, when the cops are coming around for an investigation.
Marc J. Victor
And even though the police officer doesn't tell you that, right? We talk about Miranda warnings and people are confused about Miranda. So it might be good to say something about that here. Even if you are the person who is the suspect in a criminal offense, you ultimately are going to become the defendant. They don't have to read Miranda warnings to you unless two things are occurring at the same time. Number one, you've been arrested, and number two, you are being interrogated, which means they're asking you substantive questions about what happened that doesn't apply to routine booking questions. What's your name? Where do you live? Those kinds of things. But they can ask you all kinds of questions before arrest without reading you Miranda. They can also arrest you and not ask you any questions and not read Miranda. But that only applies for the person who's in J.eopardy. So for the witnesses, Hey, tell me what happened. Okay, you still don't have to answer that question. Now we have to stop short of giving advice to witnesses, not clients of ours, but potential witnesses to say, don't talk to the cops. That's right,
Andy Marcantel
Because
Marc J. Victor
They're witnesses and it's not within our Jurisdiction or purview to say Don't do an interview. What I do tell people is, look, if you're favorable to the defense, sitting for an interview with the prosecutor might not be in the defense interest. And so you can make a decision about what you want to do there, but I don't want to be tampering with
Andy Marcantel
Witnesses. And that applies of course to a defendant in a case or other witnesses. You can't tell anybody. You're not allowed to talk to the cops or don't talk to the cops. And so we certainly would make it clear to a client of ours who's a defendant in a criminal case, don't go around and tell the witnesses they're not allowed to talk to the cops. But like you said, we can inform them of our opinion on things. We can inform them
Marc J. Victor
Our preferences of
Andy Marcantel
Our preferences of the obJ.ectively true statement in our view that this might be adverse to the defense if you were to say this, but we have to stop short of saying you can't talk to the cops because everybody has a right to talk to the cops if they want to.
Marc J. Victor
So there's really two sides of the interview coin, right? There's the state or the government's attempt to interview the defendant or the other witnesses who might be favorable towards the defense, and that's what we've Just been talking about. And then there's the defendant's desire to interview all the state's witnesses. That's right. And so if you're dealing in a state where the state says you get pretrial interviews with witnesses, you should always ask for them. And we have a practice of our firm that's been a practice since we've had a firm here, which is we interview everybody. Everybody, if your name is in the discovery, we want to talk to you. And that could be for really a couple of different reasons. One, you Just never know what information you're going to get. We've turned over stones and sometimes there are things underneath those stones you never thought you were going to get. It could be a chain of custody problem. Sometimes you'll get a chain of custody form and there's one person who says, I took the thing out of the refrigerator and took it up to the third floor and put it in another refrigerator, and that's all I did, and now I'm in another state somewhere far away. I still want to interview that person because they may not,
Andy Marcantel
You never know what they're going to say. We've had so many instances in our cases where it's a witness that we were kind of routinely interviewing everybody, somebody that we didn't expect to be important at all gave us the thing that we needed to resolve the case.
Marc J. Victor
I remember I remember one time, Just a short little aside, I did an interview of sort of a very routine witness in a chain of custody matter in A DUI case it was a felony DUI. So it was pretty serious. And the person said, I took the blood and I packaged it and I put it in the blue package and put it in the refrigerator, and then someone else down the road said, I took it out of the yellow package and took the blood out. What had happened, I think in reality was they had Just switched their kits and somebody was Just going from memory, but because they created that discrepancy in the record, that allowed me to file a motion to suppress that saying there was a problem with the chain of custody. It went into a blue box and this guy says it came out of a yellow box who switched out the blue box to the yellow box. And on the strength of that, what was a felony DUI with two priors, which was a 10 year plea offer, which is the presumptive term in Arizona Ag DUI with two priors became a probation minimum with four months. You have to do four months in custody on a felony DUI in Arizona. But think about all the time that was saved solely because we did an interview of what would otherwise be a sort of mundane person who you wouldn't expect much to come out of that interview. So that's one
Andy Marcantel
Reason. Well, the importance of interviewing all witnesses, whether or not the police reports indicate that they're going to be important or not can be even simpler than that. What you're talking about is kind of a nuanced legal argument that was really important in that particular case. But it can be as simple as the cops didn't properly or accurately record their statements at the scene. I've had in police reports before witnesses be talked about who said something to the extent of, yeah, I didn't really see much at all. I was kind of over here at the time, at least that's what it said, but the police report, I don't care. I want to interview that person. And then I've talked to those people and they say, that's not what I said to the police at all. I was right there and I told the cop, maybe even I told the cops it was a different guy or I saw somebody else do it. You never know, and unless you overturn all of these stones, you may miss something really important and we don't take any of that stuff for granted. So I'd
Marc J. Victor
Call those sort of substantive reasons to do the interview. Then there's sort of procedural reasons, what we call the pain in the neck factor. And look, it's a serious game. We play doing criminal defense, fighting the state is a serious business and I don't want to go to prison. I don't want to go to J.ail. My clients don't want to go to prison, go to J.ail. We tell everybody, we defend them. We'd want to be defended ourselves. I want people fighting hard, and so we'd like to be a pain in the neck. We're going to interview everybody that's going to take up a bunch of time of a prosecutor who really doesn't want to spend extra time in their mind wasting time on a stupid case.
Andy Marcantel
And another point of that is, and this kind of hearkens back to our last video during the discovery process, as we mentioned, interviews are part of the discovery process. So all the penalties that we talked about in our last video for non-compliance with the discovery rules apply to interviews. If we request clearly a witness that we are entitled under the law to interview and they don't make that person available and we filed a motion to compel and they don't comply with the court order, well eventually we can request sanctions and possibly get an important witness excluded from being able to testify, which strengthens our case and puts us in a better vantage point for either prepping for trial or settling the case in a more favorable way.
Marc J. Victor
We're going to be consumers of time absolutely for that prosecutor, that prosecutor is going to see our name on that case and say, Ugh, this is going to be a real pain
Andy Marcantel
In the, I have been told Mark that we are both expert pains in the ass. Thank you for that brother. That's a title that I happily take me too with regard to the way we defend people because that's how I would want to be defended myself. Me too. I would want my attorney turning over every single possible everything strategy that they could possibly find for me. So who are the types of people that you might want to interview Just to name a few we talked about some you might want to interview. Definitely don't want to interview any witnesses who were present. Law enforcement obviously is a huge subJ.ect of interviews. We talked to police officers who maybe played a maJ.or role in it, the lead detective or the lead investigator or the responding officer, the person who was first on the scene, but then we also talked to all the supplemental officers who maybe wrote shorter, more supplemental auxiliary reports to the main one. A lot of times they can give us some really important stuff as well. So law enforcement, definitely witnesses, experts. Experts are really important
Marc J. Victor
For us. You have to interview the experts, no
Andy Marcantel
Question. Yeah, because we're trying to make a bunch of determinations about what our chances are at trial and a lot of the time it can be in impeaching the credibility of their experts Just because they got the title of an expert or they purport to be experts, first of all, doesn't mean that they're going to pass the constitutional muster of what it requires to be designated as an expert at trial. But second of all, it doesn't mean that they're unbiased or even that they're saying things factually correct. We don't take it for granted that they have a fancy title that they've self ascribed as an expert. We don't take it for granted that they've testified in 200 similar cases. They may not be qualified to testify accurately in this case
Marc J. Victor
They may be outside their area of
Andy Marcantel
Expertise happens a lot. That
Marc J. Victor
Happens a lot as well. Plus I like to interview people especially because I like to sit across the table and think to myself, how's this person going to play for a
Andy Marcantel
Jury? Sizing them up for trial? Yeah, I
Marc J. Victor
Mean, look, we do this with our clients and from the very first meeting sometimes I'm sitting there thinking, wow, Jury's going to love this person. This person's really believable and honest and comes across as genuine. Or then there's the other side of the coin where we say, oh my God, they're going to hate this guy. There is no way we can put this person on the stand. And then you have to think about the case in those terms. So sitting in somebody's presence and doing an interview and seeing how they respond and are they evasive? Do they give you things like for example, the police officer, isn't it true officer friendly? The sky appears to be blue, doesn't it? Well, it depends and it depends what you mean by blue and this and that. I like cross-examining those guys. They don't give you an inch.
Andy Marcantel
They show you some bias, they
Marc J. Victor
Look unreasonable. And then it's the officers who take the attitude of, Hey, I'm a neutral witness. I'm Just going to come balls and strikes and if it hurts the state, then it hurts the state that police officer's much harder to,
Andy Marcantel
Right? Yeah. We have a buddy named Scott who used to be a police officer. He's a fellow brother, defense attorney now, but he said the most dangerous thing he could do on cross-examination when a defense attorney smells blood and is trying to go for the most dangerous thing he could do for the defense is say, I don't know. I honestly don't know the answer to that question. That can take the wind out of our sails when we're expecting the officer to dig in their heels and try to purport something that they don't know or a fact confidently in front of that J.erk because we know we're going to be able to make 'em look bad. So when officers take a more less biased, more temporary approach, we want to know that and we get that feel pretty well in these pretrial interviews that allow us to size up what the state's experts are going to look like and what their witnesses are going to present and everything like that.
Andy Marcantel
Last kind of category of people that might be available for an interview would be a victim in a case there are victim crimes or non victim crimes, but when there's a victim, they're listed and victim is a term of art in the criminal Justice system. That means this is the person who is alleging to have been wronged or hurt or harmed in some way by the crime that the defendant is accused of and interviewing a victim has a lot more rules surrounding it in various Jurisdictions. In fact, there are many different Jurisdiction states that have enshrined in either their constitution or their statutory law protections that a victim is guaranteed that may include the right not to be interviewed by the defense attorney.
Marc J. Victor
And I think it's important to distinguish the right to confront and cross examine your accusers. That applies only at trial and so there's no question but that the victim is going to be present at trial, is going to be on the stand, is going to be cross-examined. You definitely get that. What we're talking about here is whether you get a pretrial interview and as we've talked about, you don't have a right to interviews, and so lots of states have said, Hey, you don't get to interview the victim or you get to interview the victim, but you got to request it through the prosecutor or you can request to talk to the victim. Victim can still say no, you may or may not be able to get a subpoena to drag them in and do a deposition. So you really got to be careful and in some states, in the states that you can't contact the victim, it can be an ethics violation that's right for the attorney. Now if the victim decides to reach out and contact us, that's different. Absolutely. Why would this come up? It comes up a lot in domestic
Andy Marcantel
Violence all the time. I can't tell you how many hundreds of cases where in that initial strategy session with a client sitting there right next to the defendant who I'm talking to is the alleged victim in the case telling me, Andy, I don't know why they're telling me I'm a victim. I don't want to be a victim. I want this case dismissed. And I have to unfortunately explain to them that oftentimes, very oftentimes the state will pick up the ball and run with it and say, no, no, I've decided even though you don't want him to be prosecuted, I've decided that you're a victim. Isn't that disgusting? And he poses a danger to society and to you whether you realize it or not. And so for the good of society says the prosecutor, I'm still going to prosecute the defendant over the victim's obJ.ection. Big
Marc J. Victor
Brother decides what's right and what's wrong.
Andy Marcantel
But of course in that case for the purpose of interviews, no problem. If they consent, we can have a conversation with the victim at that point. And very, very oftentimes that interview with the victim conducted in an informal setting that can be used and maybe turned into some sort of a sworn affidavit or a statement from the victim, which we can send to the prosecutor and say, Hey, Just want to let you know you're star witness in the case. Your alleged victim is coming in to talk to us saying they're not a victim and they think it's outrageous that you're prosecuting the person you're claiming harm them. So you should dismiss the case.
Marc J. Victor
Yeah, this overlaps a little bit with the discovery video that we did, but Just because you're going to interview a victim doesn't necessarily mean you're going to make a tape recording of the interview. You might not know what they're going to say. You might be worried that they're going to say something now and change their mind later, and what they say now is going to be favorable, so you better record that one. So yeah,
Andy Marcantel
Remembering of course that it's going to be subJ.ect to the discovery rules. That's right. If we make a recording without planning it out and without knowing what they're going to say and they blurred out something bad for us, well most Jurisdictions are going to require us to disclose that recording to the prosecutor.
Marc J. Victor
Yeah, you're not talking about an attorney-client privileged issue here because this isn't the client. So you really got to think strategy wise, we probably want to interview the person, but do we want to record the interview? Maybe, maybe not. Sure
Andy Marcantel
Depends. Okay. So there are two kind of main categories and you've heard us kind of talk about both of these categories in this conversation so far, but the way that I think of it, there's informal interviews and there's formal interviews. Informal interviews is we're not alerting the state that we're contacting the witness. Maybe we send an investigator out to a scene. It could even be before it's charged. In that example we gave about a recent case that we worked on, or even if the case is charged, we have a right to an investigator, we can send our investigator out to interview witnesses, no problem. So something kind of outside of the purview of the rules of criminal procedure and outside of the official court filings and everything like that, this would be in an informal interview and lots of people can conduct informal interviews. Typically it's an investigator which is essentially an expert that works for the defense team. We have some excellent investigators that have been assisting us in these types of cases over the years. Sometimes there are court appointed experts in criminal cases that also will go out to the scene and interview. And also as we suggested earlier, the attorney can talk to witnesses directly. Now there are some snafus, there's some little ethical landmines here when it comes to an attorney talking directly to a witness, you don't want to make that attorney a witness in the case because there are ethical concerns with that.
Marc J. Victor
We should talk about that, right? Imagine you didn't record it and the witness said something really important to the case and now the witness is changing his or her mind. Guess what? There's only one person who can get on the stand and answer the question about did this person previously say something different? And that's the lawyer. And so to avoid this problem, right, because then once that happens, the prosecutor's going to say, now the lawyer's got a conflict. You can't be a necessary witness and the criminal defense lawyer on the case Judge, throw him off the case as the defense lawyer put a new lawyer on the case. Exactly. So you got to be very careful. This is one of the reasons if we're going to interview, sometimes we might make the recording or bring an investigator with, and so bring in the investigator with is almost like recording it because now that investigator can get up on the stand and say yes, on such and such a day. I went out there and I spoke to so-and-so and on that day, here's what the person told me, they may or may not do a report because that report, again, like a police report is going to be discoverable. We have to give it to the other side.
Andy Marcantel
So these are informal interviews to say a few words about formal interviews. This is the type of thing we were talking about when we're talking about court ordered depositions. When we actually get the court involved to compel somebody to participate in some sort of an interview. And it's not Just always through a dramatic motion to compel or something like that. Most prosecutors understand if their Jurisdiction requires them to provide witnesses for interviews, you're not going to have to twist their arm to do it. They know that we could complain about it. So they will generally be civil about it and make different witnesses available. We usually talk outside of court, usually nothing is even filed with the court in order to set up these interviews and we'll agree with the prosecutor and the witness that needs to be interviewed on a certain time and date. Now, important distinction here between informal interviews, we're talking about the prosecutor's fully aware we're doing the interview with the witness at this point and usually wants to be present and usually wants to record it in real time. And so that's kind of a distinction between the formal process and the informal process. And the formal process usually follows some sort of a rule of criminal procedure in your given Jurisdiction.
Marc J. Victor
And there might be other reasons you want to do a formal deposition. Like for example, you might have a witness who has important information and is on their last legs and you might not survive to be able to come in and testify at the trial. If you want that interview to be admissible at that trial, you better have a formal deposition going and the other side has a full and fair opportunity to cross-examine because otherwise you're probably not going to get that interview into evidence.
Andy Marcantel
Alright, now it's time to talk about my favorite topic when it comes to interviews, which is strategy. Alright, what are we trying to get out of these interviews? And I always like to begin with the end in mind before I conduct an interview, before I do any part of this criminal process. But it's a good reminder to begin with the end in mind before you ever start an interview, whether formal or informal. So I think to myself, what do I want to get out of this witness? And there's multiple different reasons I might interview a witness and it's important to keep that in sight. So for example, this person might be an important fact witness that I need to prepare me for what the facts are going to be presented at trial. So this person may be was a witness who actually saw what happened and I need them to establish a factual basis to lay out the story of the case in front of a Jury and that witness might be a police officer, might be Just a lay witness, might be an expert witness, but this is an important fact witness that you need to construct the story to build your defense around at trial.
Andy Marcantel
That's one kind of type of witness. Then there's a whole nother type which is even more interesting to talk about what if this person isn't necessarily an important fact witness, however, this person has knowledge of a particular element of say, a motion that I want to file. So to give an example, maybe I want to file a fourth amendment motion to suppress because I believe that the cops unconstitutionally searched my client's vehicle, for example, and let's say that this person is more or less Just not a very important fact witness, an officer perhaps who showed up late to the scene and wasn't the arresting officer and maybe observed a few things and maybe the only thing I'm trying to get out of that officer is yes, we then opened the car door and searched the bag inside. Maybe that's the only thing that I want to get out of that officer. Well, strategically if I Just Jump straight to that question, that officer may be on the defensive, they may be more
Marc J. Victor
Why is that so important?
Andy Marcantel
Why is that important? They may be prepped about this or something like that and they may be more likely to say something that's adverse to what you're trying to get.
Marc J. Victor
Yeah, maybe something a little more sort of tangential client might say. Yeah, well first the officer opened my door and then he looked in and saw and then he said, Hey, would it be okay if I searched your car? And so the officer may say, no, no, no. First I got consent and then I opened the door. Well, so you've got some officer who's Just on the scene doing traffic control or something if that officer and you might be able to lead that officer. Now you remember the officer opened the door and then looked inside and then said, Hey, is it okay if I search? And they might say, yeah, not thinking that's a big deal. Exactly. Or I had one once when the client consented to a search and the question was whether police officer had given him back his driver's license, IE, he was free to leave or he was still detained and that's sort of coercive at the time and they may not understand why that's a big point at that moment. And so yeah, sometimes you want to ask a whole bunch of questions that don't really have anything to do with
Andy Marcantel
Anything. Get the officer comfortable, get 'em talking and everything. And even that bringing up the free to leave that can be important in so many different contexts. Like for example in the Fifth Amendment context as we were talking about previously in this video, which is that you have this Miranda right to remain silent that the cops are supposed to remind you of and if they don't properly Mirandize you and they have you in custody and they do an interrogation of you, if they fail to Mirandize you and warn you of your fifth amendment right to remain silent, then the penalty for that is everything that you said can't be used against you in the case in chief, right? The whole thing may turn on, they have a confession or a stupid statement that your client said to the cops that you want to get thrown out and you might interview that officer and the only thing you care about in that half hour to an hour long interview is whether or not the client was free to leave because you want to file that motion to suppress under a Fifth Amendment argument that they weren't free to leave and they were being interrogated.
Andy Marcantel
And so yeah, sometimes the smallest little statement can be the unwinding of a huge constitutional issue. I
Marc J. Victor
Once had one in federal court. My guy was sort of the usual suspect and he was walking down the street, he had a firearm on him and the officer pulled in and rolled down his window and said, Hey, I wanted to ask you some questions. Well, at some point the officer put his lights on. The question was did he put his lights on before he said, Hey, I want to ask you some questions, which is to say he was detained or was he voluntarily having a discussion with the police officer? The whole case turned on that, and I remember having a witness who didn't really connect much with the case, but knew enough to know the lights went on pretty quick before my guy was talked to and on the strength of that everything was suppressed and my guy walked a little point like that. The officer doesn't understand because the way you asked the questions, how you buried it in a whole bunch of other questions, and they don't think this is very important
Andy Marcantel
Strategy. It's so important the way that you ask the question, the way you put the context of your questions is so important.
Marc J. Victor
I remember one time, and maybe I shouldn't even put this on the tape, that'll get everybody to pay attention, but I remember one time saying to this officer who was involved is that when my guy asked for an attorney and the guy sort of thought for a second and I said, oh, no, no, no, no, he said lawyer. He asked for a lawyer and he thought because of the way I asked the question that that actually happened,
Andy Marcantel
That it occurred.
Marc J. Victor
And so he went along with that and on the strength of that, I got things suppressed because of the way I asked the question to him. And so he felt like he didn't know the facts very well and he thought I was sort of clarifying the verbiage between attorney and lawyer, and that was enough to Just push him over the edge to answer the question in a way that I needed it to be
Andy Marcantel
Answered. Oh, very sly there, mark. And good advocacy for your client. That
Marc J. Victor
Does. I've also had the reverse done on me. I remember being a young whipper snapper attorney and thought I was being smart with the police officer and I said, did you read Ms. Miranda rights? Yes I did. Are you sure? Yes I did. Did you read 'em all four? Yes, I did. How do you know? You read 'em all four. And he whipped out in his pocket. He said, because I read it from my department issue, Miranda warnings card. And I looked at it and said, 1, 2, 3, 4. And I thought, wow, this guy was really prepared for me. Yeah,
Andy Marcantel
Absolutely.
Marc J. Victor
Actually that's what got me thinking about printing up the back of our business cards. Yeah, that was actually the motivation for that.
Andy Marcantel
Yeah. You guys know if you have our business cards, there's a statement on the back that is painstakingly crafted to invoke all of your constitutional rights, everything in an encounter with the cops. And sorry to roll into one more anecdote. I feel like we're Just kicking old war stories out each other. But one more anecdote, and this is Just a recent one that you may be aware of where we recently had a case thrown out because of a bad traffic stop, and what we wanted to figure out from the officer when we conducted the interview with the traffic stop was did he independently corroborate a tip that he had received? In other words, did the cop actually notice a traffic violation or did they Just base the traffic stop on the tip alone? Which we had a wonderful argument, so we had really, really strong authority based on case law that this was a bad tip.
Andy Marcantel
So the whole thing came down to did the cop independently corroborate the tip with a traffic violation? Did he observe a traffic violation? Well, the cop didn't know how important this one little fact is. So we conducted, I want to say a 45 minute interview with the guy where we walked him through everything in this police report and everything that happened and he was talking and he was kind of in the mode and in the gear and Just kind of regurgitating everything and then we kind of slipped in the middle and then you pulled him over without noticing a traffic stop, right? Right. Bam. We isolated that part of the audio. We took that quote, we blasted it up, we put it in all caps, bold, underlined, and it formed the basis of a emotion to suppress, which was granted getting everything that was found in the car, which was a firearm that happened to be, Ooh, it had a regulatory violation. We were able to get all that stuff suppressed and the case thrown out because of that one line in that interview. So the
Marc J. Victor
Whole case can be won or lost and not Just a suppression motion, even a trial, putting the evidence out there of what is going to be said, how things are, whether the person is really certain or not so sure about that. Interviews are really very important. And like you said, to Just go in on a fishing expedition and to not know which port you're sailing to is a mistake. You really got to begin with the end in mindset, what is it I'm trying to get out of this? Or am I Just trying to waste the prosecutor's time here and Just the i's and cross the T's for the purpose of being a pain in the neck? But if you've got a plan, you really should think about how you're going to execute that plan because somebody's freedom depends
Andy Marcantel
On it. I'll add a nuance to that though, as important as it is to have that overall game plan where you're aiming towards a certain strategy, a whole nother strategy as a good lawyer is being able to think on your feet because oftentimes things will come out in that interview that has you say, huh, okay, that's not written in the police. Let's go down that road for
Marc J. Victor
A little while. Comes up all the time. I can't tell you how many cases I've had. I've done an interview and three more have propped up from that interview.
Andy Marcantel
I've also seen interviews before where I've done in-person interviews maybe with an officer, and then the cop answered the question in a way where the prosecutor kind of looked uneasy and kind of looked over like, huh, didn't expect it kind of a thing. And then, okay, now's my chance to lock this guy in right before we get sandpaper. The prosecutor's not going to be able to sandpaper interview with my interview right now, and so we can kind of go down the road. So yes, it's important both to have a big 30,000 foot game plan with a goal in mind, but also to be able to think on your feet when surprises arise, which they often do in these types of interviews.
Marc J. Victor
Just as an aside, sometimes that happens and the prosecutor will say, can we take a break? And they'll go out there and want to talk with the police officer and they'll do their thing and then they'll come back. My first question is always tell me everything about the conversation you Just had with the prosecutor.
Andy Marcantel
Exactly, yeah. And
Marc J. Victor
Sometimes the prosecutors get a little offended about that, but that's not your client. You don't have attorney-client privilege. I want to know everything the prosecutor Just said to you and everything you said back to the prosecutor and they know I'll call the prosecutor as a witness to confirm that or not. I mean, you got to be aggressive like that in some cases.
Andy Marcantel
On the subJ.ect of the prosecutor, there's also a certain strategy here in these witnesses about what information do you want to come out in front of the prosecutor in these witness interviews? Because very oftentimes you might want to save some stuff for trial. You might want to keep something secret or not tip your hand as to exactly what you plan on getting out of this witness when it actually comes to trial. Just because you didn't ask the question of that witness in a pretrial interview does not mean you can't go beyond the scope of that when you got 'em on the stand under oath. A great point. And so the more that you prep them for, the more the prosecutor's going to be able to prep them to maybe have an answer that's more favorable to the state. So that's a strategy decision as well. Plus
Marc J. Victor
You may want to pull some punches, right? You may decide that you got some great cross-examination stuff that you don't want to bring out during an interview and give them an opportunity to kind of take the wind out of your sails at the trial. You want to Just drop it on 'em right
Andy Marcantel
There. Yeah. So we've been talking about this is your chance to lock in the witness and really to drive that point home. If they give a statement or they give a certain version of events in either a formal or an informal pretrial interview, and then they take the stand and they testify inconsistently with what they said in the previous interview, that's what we call impeachment. That means that we can bring it in and say, hold on, hold on. So you Just testified to this. Isn't it true on this date at this time, we had an interview and you said the complete opposite. And then if they make the stupid decision to dig in their heels, at that point you say, oh, okay, perfect Judge, I'd like to play the recorded interview, the relevant part where the officer's going to say the exact opposite for the Jury right now on the loudspeakers in the courtroom, and you're going to be allowed to do that.
Marc J. Victor
Yeah. Some people might think that that's hearsay because you're bringing in an out of court statement. Somebody said it outside, but it's not hearsay. It's not the definition of hearsay if you're using the out of court statement for the purpose of Just simply impeaching. I've also played this up a little bit. I've had a few times at trial and it Just tells you how long ago this happened where the police officer would be on the stand and I would say, didn't you tell me such and such or so-and-So back in that pretrial interview, and they'd be like, hold on a second officer. And I'd go and I'd pull the tape recorder out and you might've been there once or twice. Fast forward, fast forward, get it right. Okay. And then I'd put it on the table and say, let me ask you that question again. Do you remember saying blah, blah, blah, blah, blah, blah. And I remember being very happy when they said yes, because my tape maybe didn't reflect that exactly perfectly.
Andy Marcantel
Or they might say, eh, maybe I said something like that. Good enough. I'll take it
Marc J. Victor
Good enough. We'll take it without playing anything. So sometimes you can bluff 'em a little bit in the right direction to, that's the kind of thing that you alluded to thinking on your feet. Yeah, absolutely. You can't really teach this stuff. You Just need to be creative, think on your feet, take advantages of opportunities when they show
Andy Marcantel
Up. It's something you only get with experience for sure. There's an important concept here with witnesses that I think is worth briefly mentioning, and that is the fact that the state is fungible in terms of the knowledge that it possesses. What do I mean by that? I mean that if one person who is involved with the state or who is a agent of the states, a law enforcement officer, if they have a piece knowledge as a witness, then it is imputed to every single other police officer, to the prosecutor, to all the agents of the state, even if they're not present at the scene where they see it, even if they're on the other side of the country, as long as they work for the same department, as long as they work for the same sovereign or entity, then their knowledge is imparted. And this can be a good or a bad thing for a defendant. It really Just depends.
Marc J. Victor
So for all my fellow Star Trek fans out there, all the Trekkies out there, think of them as the Borg, right? The police are like the Borg. If one officer knows, they all know that's right. Including the prosecutor. They have a duty to talk to the officers because otherwise they could Just withhold stuff. There's so many of them out there. They could Just say, oh, well this guy's got the exculpate, let's Just send this detective instead.
Andy Marcantel
Exactly. And so a prosecutor for this reason and why this is good for a defendant is that the prosecutor cannot claim, oh, I'm sorry, I didn't know that the officer knew that helpful piece of information to the defendant. I Just didn't know, blah, blah, sorry. Right?
Marc J. Victor
Because officers are smart enough to say, well, geez, if you give that to the prosecutor, then they're going to have to give it to the defense that's going to help the defense. Let's Just not give it to the prosecutor. Well, if we find out about that later, I mean, you may not find out about it, right? But that's the kind of thing that'd be on the, put them on the Brady list that we talked about previously. But they don't get to play that game. The due process requires that they are held to the same standard. And for the most part, my experience has been prosecutors don't play games with Brady material.
Andy Marcantel
Yeah, absolutely. Now, there are times when this Borg like knowledge of all of the state's agents being one entity in terms of what they know can actually be a bad thing for a defendant. I remember in a big federal drug case that you and I did very, very early on in micro must've been a decade ago or more, where we had a motion to suppress for the house and there was a bunch of drugs and guns and all kinds of stuff in our client's house, and the cops were trying to figure out a way to get in there. Also, at the same time, our client was fleeing the scene and the cops were trying to figure out if they had probable cause to arrest our client. Our argument was they didn't have probable cause to arrest our client. And the issue in that case and how this concept of imputed knowledge ended up working against our client is at the scene where they were at his house where the police were at the house, one of them noticed something in plain view that was definitely incriminating.
Andy Marcantel
Definitely probable cause was generated in that moment to arrest our client. And it happened to occur mere minutes before at scene number two, where they were pursuing our client, deciding whether to arrest him. They then, without talking to those officers at the house where they found the incriminating evidence, they went ahead and arrested him. So we argued, hold on. That officer didn't have probable cause to arrest our client. The Judge looked at the time in which those two things happened and said, I'm sorry, even though they didn't communicate about the incriminating stuff that was found at the home, it was immediately imputed to them. And when they arrested, by the time that they slapped the cuffs on your client, some cop somewhere else had found evidence of enough to support probable cause to arrest. So it seems ridiculous, but that is current case law. If the
Marc J. Victor
Board queen knows, all the drones know.
Andy Marcantel
So that's an important point. So in state cases, we talked about the defense usually has to make their witnesses available for the state to interview as well. So if we put them on notice that we have lay witnesses or expert witnesses, guess what? They get to take a crack at our witnesses. And same kind of thing happens where if the Jurisdiction allows, they can get the court to order those interviews to happen. They have a right to sit down and force them to answer questions so that they're prepared for trial and they have the right to do the same thing that we do in terms of looking for what's the bias going on here, how much knowledge does this person actually have In the case of an expert, how much expertise do they have? Things like that so that they can try to impeach our witnesses credibility.
Andy Marcantel
And how I'd like to end this video, mark is with a couple of anecdotes. You and I have both had interesting situations where we've been involved in formal interviews with a police officer in a case representing a client, and the prosecutor's been there and the tape recorder's been on. And for whatever reason, the cop Just outright refused to answer a question that we asked in my situation. I was sitting there talking to a cop, I was asking him questions about the case. I was getting lots of really helpful information, and the prosecutor was sitting there not interfering with anything as they're supposed to do. And then I asked a certain question that the prosecutor didn't like, and the officer started responding to it, probably not realizing how important it was to the defense's case. And the prosecutor piped up and said, hold on, hold on, hold on.
Andy Marcantel
You don't have to answer that. And the cop kind of looked at him and looked at me and said, I guess I'm not answering that. I was like, hold on. So are you refusing to answer my question? What authority do you have to tell him? He doesn't have to answer the question right now. No, he's got to answer this question. And the prosecutor said, sorry, I'm Just telling you officer, don't answer that question. Well, this is an outrage. Outrage. And so I filed something with the court and the court agreed with me that this was absolutely improper conduct by the prosecutor. And the remedy in that was that the court ordered the cop to file a written response to my question. I was able to formalize the question and file it with the court, and basically the court put it in front of the prosecutor and said, don't coach him.
Andy Marcantel
Don't interfere with it. Get him to answer the question and send it to the defense attorney. You guys do not, and this is the court talking to the prosecutor. Now, you guys do not have attorney-client privilege, you and the cops, they're not your client. They're supposed to be a witness. You don't represent them. You should be treating them as a neutral arbiter of the facts. So answer the damn question is basically what the court said, and I got a nice written response from the officer and a chance to follow up with any questions that I had. So that was the resolution to mine. Yours is pretty funny though.
Marc J. Victor
I'm not sure which one you're thinking about, but it might be this one. This is young Mark Victor, but I remember doing an informal interview with a police officer. In fact, it was in Mesa, Arizona. I don't know if that's the case you're thinking of. And it was sort of a minor case. And I was going through a pretty big interview long process, and I was Just at the end and I Just asked him a bunch of sort of routine questions and I said, do you have any criminal convictions? And he looked at me like he was offended. I'm a police officer. I said, I understand that, but do you have any criminal convictions? I'm not going to answer that question. I said, really?
Andy Marcantel
He's Just
Marc J. Victor
Defended. He's too good to answer that question. Really. You're not going to answer the question about whether you have any. I mean, maybe you had something in your past life and I don't know, have you had any prior criminal convictions, misdemeanors or felonies? I'm not answering that question. Okay, sir, get to the next guy. They had spoken in between the interviews, same exact thing. Get to the end of the interview. Any prior criminal convictions? I'm not answering that question.
Andy Marcantel
Okay, so you asked one cop after the other if they had any as part of it, Just routine questions, Just routine questions. And you asked that background question. They spoke to each other in between the interviews and one by one while they answered all of your other questions
Marc J. Victor
On principle, because they were police officers, they were too good to answer my simple question about they could have Just said no, but they didn't. So I moved for a deposition for the purpose of asking one question, and I laid it out there, and I don't know, somehow I think they got set on the officer's day off at 7:00 AM at my office, because that's the nice thing about setting a deposition. You get to pick the time and the place of the deposition. And boy, I remember two really angry officers showing up at my law firm at 7:00 AM I sent my paralegal out there, see if they want a cup of coffee, tell 'em I'll get to 'em in Just a second. I went out as sweet as I could be and hi, officer friendly. It's good to see you again. How are you, sir? Come on back. Let's get our interview figured. And I would sit there and I would say, do you have any prior felony convictions or misdemeanor convictions? No, thank you officer. Have a wonderful rest of the day. Did the same thing with the second guy and sent him up. But you know what bothered me about that was Just the arrogance. Absolutely, Just the
Andy Marcantel
Arrogance. I'm glad that that happened. I mean, a huge part of me hopes that it was a learning experience for these officers to Just do your J.ob, be professional, be civil. Who do you think you are? And whether it's an officer or any witness, their pride takes a backseat to the constitutional rights,
Marc J. Victor
Sorry,
Andy Marcantel
Enshrined in our constitution to give people a fair trial. And I'm sorry, how offensive it is to you. But at the end of the day, sorry, the due process clause definitely trumps your right not to be offended by the questions. So I'm glad that that happened, mark. It was fine. Alright, well, that's all we got to talk about today. We're going to talk about a whole bunch of different fun stuff next time. Any last thoughts on interviews? I don't
Marc J. Victor
Know, but I like that we're starting to sprinkle in some stories because I mean, I got three decades of stories to sprinkle in. Maybe we should do more of that. Maybe people let us know in the comments if they like hearing these little stories of past cases that we've done, or they Just want straight legal
Andy Marcantel
Information. The issue with that is, and you and I get together all the time, and we Just start reminiscing about all the crazy adventures that we've been on over the years, all the crazy cases and anecdotes and stories ranging from ones that are really heavy and life-changing and impactful. Very, very serious cases that we've done. And also more lighthearted, hilarious type cases with funny anecdotes, crazy stuff. That we learned about the law, that was shocking and big important motion. So the problem with this is that I feel like if people are like, yeah, we want more stories, we're going to need to make it basically its own show where we're Just spitballing stories all day. I feel like we could Just dive down a rabbit hole.
Marc J. Victor
But you know what, this is the cool thing about being one of the many cool things about being a criminal defendant. This as well as I do, we can run any party we want Just by telling some stories about crazy stuff that's happened in the past. I mean, of course we can't identify,
Andy Marcantel
Can't identify people without permission.
Marc J. Victor
Old stories about cases that don't have a lot of details so they could figure out who the client is and Just crazy. You don't have to make anything up. What we do is crazy enough,
Andy Marcantel
Stranger than fiction, many days around this office. And as we always say, there is never a dull day at the attorneys for freedom. And that's exactly the way that I like it. Why we love it. Alright everybody, thank you very much for tuning into this recent episode of Fighting the State. Go and check out attorneys on retainer us to learn all about our self-defense program and what it can do for you. Check out attorneys for freedom.com to learn all about our law firm and how we defend people. And if you like this video, be sure to throw a like on it. Leave us a comment down below and share it with a friend if it was helpful. And we sure do love what we do. Mark,
Marc J. Victor
We love it. We're good at it. We take pride in it. We feel very honored to be criminal defense lawyers and you cannot have a free society without what we do. So I'm proud
Andy Marcantel
Of that. Hell yeah, brother. Alright everybody, until next time, there's attorney Andy Markin Till and attorney Mark J. Victor. Peace. Peace.
YouTube Video Link: https://www.youtube.com/watch?v=_1_cs5shlyw
Credit: Attorneys On Retainer