Lawyer Talk Q &A.

Steve Palmer here what we've been doing with this Q and A series is taking some of

the regular common questions, as well as some of the unique ones that we get not

only on the website that's Lawyer Talk podcast.

Com, but also some of the questions I get

upstairs in a law firm at Yavitch & Palmer, Ohio Legal Defense.

Com.

The idea is to create a place where we can just answer these questions for those who

just want to go and access the questions only without the podcast itself.

This is where you can do it.

So in case you haven't figured it out yet,

you can submit your own question at Lawyer Talk podcast.

Com. You can go to Ohio Legal Defense.com,

upstairs at the law firm and submit a question there.

Just give me a shout. 614-224-6142.

That brings us to the question of the day.

And it's sort of ironic because I haven't even published the last question yet, and

it had to do with should I talk to the police when I've been

either under investigation or the police are knocking at your door?

And this question I received yesterday up in the law firm, and it had to do more

broadly, I suppose, with the general investigative stages of a case.

And so often I get calls like this where somebody is under investigation, and it

just seems probably not coincidentally, but for good reason, it seems that there's

a lot of folks who deal with this while they're under investigation for

an alleged sex offense, say, like an acquaintance sexual assault where two

folks hooked up and maybe the other is claiming that it wasn't so consensual.

And the person that calls is saying, no, it was consensual.

And they hear that there's an investigation.

And maybe they hear that because the

police have talked to one of their friends.

Or maybe the police have actually knocked on their door directly.

And they have heated the advice that I

gave the other day on not talking to the police.

And they've called me instead.

And they come into my office and they want some advice on how to deal with this.

So the scenario is basically this you're under investigation for a crime was just

for purposes of this discussion say it's an alleged acquaintance rape,

and the police want to talk to you and you know the case is coming.

What do we do?

There's no right answer here.

That fits all.

There's no cookie cutter response.

We take every case individually and

analyze it and assess it and decide the best course of action.

And this is an important part of what I do.

I think this is an important part of any

criminal defense strategy is that you can't just follow the textbook all the

time, because every situation is a little bit unique.

Every situation has its own nuance, and

every situation needs its own unique solution.

That's not to say that some of the solutions aren't the same as others.

But we always start sort of it go and get to know the case first.

And that's probably a more detailed discussion for another question.

But generally speaking, what do you do when you're under investigation?

I call this the minefield.

And the best analogy I've come up with

over the years is this it's almost like somebody or you fell asleep.

And then in the middle of the night,

somebody plucked you out of your bed and place you in the middle of a mine field

and the minds, you know, they're there and you wake up and, you know the mines are

there, but you don't know where they are and you're just standing there.

And if you take any step in the wrong direction, the danger, of course, is

you're going to step on a mine and blow yourself up and that's it.

But you don't just want to stay there.

It's a very precarious place to be.

So this is really how it feels.

I think when you're under investigation, I

think the natural reaction is I got to do something.

I want to do something.

But the problem is you may not know where the mines are.

You don't know how big the minefield is.

You don't know, even necessarily who the

person on the other side who put the mines there, who that is.

There's too many variables and unknown.

So when people come to my office and we go through this, the first thing I do is I

get their side of the story and figure out what what we think it is.

And then we try to think through and reason through the problem.

Imagine that actually use common sense logic, reason, experience and

try to figure out the parameters of the problem the best we can.

And then we try to decide on a course of

action and all too often, or maybe not all too often, but very often the course of

action is to stay put in the middle of the mine field.

And that is a very, very difficult thing for folks to do.

People like to do things when anxiety hits, when that stomach, the

butterflies or the angst in your stomach and throat hits.

The natural reaction is, I got to do

something, and I suppose there's a flight or fight response.

You want to fight or you want to run.

But it's really difficult to do nothing yet.

That is most of the time exactly what the individual has to do now.

It's not necessarily what I have to do, but it is what they have to do.

And here's what I mean by that.

If by doing something, we mean we're going to go talk to the police.

Well, we already know from other questions that that is not a good move.

We don't want to just go talk to the

police because we don't know where that mine is.

We don't know what the exact questions are going to be.

We don't know what they have and what they don't have, what they're alleging.

The they're not alleging.

We don't know if some of the simplest

elements of this alleged defense, they can even make them.

We just don't know.

By talking to the police, you risk

stepping on a mine, and it might even be a mind that blows up

months in the future, and you wouldn't have even known it.

So that's not a good move.

So you can't talk to the police.

A lot of people want to reach out to the other side.

This might be somebody you've dated.

The alleged victim might be a friend of yours, a family member.

It might be somebody on the other side that you think.

Well, I can just call this person and reason with them.

Can't we just say, hey, look, let's just let's just talk this through.

Well, you can't do that.

Here's how that plays out.

A lot of times you get a call or the

person under investigation gets a call and it's the other side say, it's your ex

girlfriend calling just to say, hey, look, I just want to talk about this.

I can't believe that you did these things to me, whatever the conversation is, and

you think, all right, well, this is an olive branch.

This is a time whether even if I'm not

guilty, I can at least maybe be conciliatory here.

And I can find my own way through the minefield.

And I can talk my way out of it by just

making this person realize that I'm really a good guy.

And all too often we do that like I said, in a conciliatory fashion, we

give them what they want to hear, even if it may not be true.

So you start apologizing for things and you're apologizing because they're upset.

They think you're apologizing because

you're confessing or admitting to some guilt or responsibility.

And guess what? The police are listening.

These calls are often recorded.

They are often doing in conjunction with a

police Detective sitting right next to them.

And they're instructing the individual on

how to record the call and even what to say.

And then later on,

you think that you've talked your way out of it and you've done a good thing.

And then I get the audio recording from

the prosecutor and discovery after you've been indicted.

And we talk about this and you're thinking, Holy crap.

That's not what I meant to say.

I just all I was doing was trying to make her realize that I'm a good guy.

You can see where this goes.

It goes to no Orland.

And it looks like you've made a confession.

You've stepped on the hidden mine and you didn't even know it.

That sort of brings the next question, which is, what can I do?

Do I just have to stand here in the middle of the mine field?

Well, the answer is sort of yes.

The answer is you, but I don't as a

practical matter, just because you can't make any moves, it doesn't mean your

attorney can't make any moves during the investigative stage.

And some of the things that we can do.

Maybe it's like the old Basic Psychology 101.

We have to control our controllables.

And I guess before I get to what I would normally do or the attorney can do, let's

talk about controlling your controllables all too often.

Standing in the middle of mine field is wrought with anxiety and stress, and

that's when people tend to go off the rails a little bit.

So a lot of times I have people start to

talk to a counselor, talk to a therapist to find a support structure.

And it might just be a family member, a

close friend, not to give details about the case, but to start focusing on what

you can control and that's your own mental health well being.

Sometimes I tell people believe it or not.

Look, start going to the gym and start blowing off steam.

That way, one of the worst things people

do is they start drinking or partying or doing whatever, and they use those magic

words, effort and whatever they do after that is generally a bad thing.

So I help people sort of get a grip on

what they can control and that's their own mental and physical health,

because only then can we really maximize the powers of our defense, which is our

team, and the person accused is certainly part of that team.

So your control would be I got to take care of myself.

I have to help my attorney do what he or she needs to do.

And then I can stop focusing on the fact that I'm standing here in the middle of

this minefield, and I'm about to blow up if I move and instead shift my focus to

the things that I can do that don't involve moving around in the minefield.

Now, the real question, what things can I do?

Well, in a case I was working on yesterday, I have a client under

investigation and we talked about what I can do.

And here's the number one thing.

You can do it and involves multiple facets.

But the number one thing you can do is

preserve and gather evidence for our defense.

And I'm not talking about things that necessarily the police are going to do.

I'm talking about the things maybe the police won't do.

And in my situation in many situations,

the first thing I do is I talk to my client about his or her cell phone.

What's on your cell phone?

What's on your social media?

Are there text messages?

Are there Snapchats that you think are deleted that maybe not.

Are there any videos, photos, anything there that could be a value.

And here's what I mean by that.

Even if you think you've deleted stuff from your phone, we can take your handset,

send it to an expert and see what can be gleaned from it.

We can recreate what is there.

We can see if there's deleted text that can be recovered.

We can see if deleted photographs or images can be recovered.

We can have experts or even we can do this in house at times.

Check your backup account.

Some people back there the data up in Google or Apple, or even Verizon.

Most of these cell phone companies have a proprietary backup system that you can get

things we want to see if that evidence can be had.

And we're looking for things like, say, it's an allegation of a sexual

offense, and there's an ongoing relationship.

And maybe you've deleted some of those

texts because you just thought that was the right move

over the years or over the months or over the days leading up to this.

And we want to see if we can get those back because it shows that there was at

least at one point leading up to this, a prior, friendly, consensual relationship.

Maybe location data matters.

It could be that there's an allegation that you committed a sexual assault or

some other crime at a time and in a place and you weren't there.

And most people, it's hard to sort of

realize it these days, but you're carrying around, like your own digital DNA in your

pocket or per or suit code every day in the form of your phone.

Your phone is documenting so much of what you do.

And if you have Google services, for

instance, many experts can go and get location data every time you pin a tower

or access something by Google, there are

times that they can go back and figure out where that handset was.

At that time, you may have location services in your car.

You may have been with somebody else who has some location services active.

So if it matters where you were and what

time you were there, then we may be able to gather that stuff.

Now, again, this does not mean that you

have to start moving around the mine field.

Necessarily. You're not doing that.

This is our controllables.

These are things that are within our control.

We also can talk about whether there's any witnesses that we can interview.

And at this stage, we have to make some decisions.

There are going to be witnesses who line up against us.

It may not be the best move to interview those folks right away.

It may be the best move to interview those folks right away.

Those are decisions that we have to make

that the attorneys have to make with careful input from our clients.

But then there's almost always witnesses that line up on our side, and there's no

reason not to get them locked in, get them interviewed.

Now, I don't mean just the attorney interview them, and I certainly don't mean

that the person under investigation should interview them.

We get an independent.

Well, we get our own private investigator to conduct that interview professionally,

document it, get the statement on paper, so to speak.

So we have it locked in that way.

If somebody forgets or memories fade, say the case

comes up two years later and it's sort of fuzzy.

We have a memo, a witness statement, something documenting what they knew and

what they said when the event was still fresh in their heads.

We want to get that down. Now.

The other thing that happens is witnesses

who are on our side now may not be on our side later, and to the extent they're

willing to talk to us now, we want to do it.

We want to get it locked in.

And I've had this come up time and time again.

And I've been so fortunate that I have learned early on that if I lock in those

witnesses now and they change their story later, I at least have a version of the

events that's favorable to us and it's in writing.

It's documented. And I have an investigator, a witness that

can come into court and verify it if I need to.

There are often records that we can obtain right now.

We can send out public records, requests for documents, maybe medical records

matter, and we have access to medical records, even if it's our own medical

records, or maybe if it's our kids medical records, we have access to that.

Now. We want to send out the request and get

them so often in this day and age, there is surveillance footage out there.

If an incident say it's an acquaintance, rape allegation.

And it started at a date at a bar, many, many, many bars, restaurants,

parking lots, even just public streets have security cameras.

And the problem with those cameras is that

they overwrite every 24, 48 hours or they don't get preserved.

And you have this small window of

opportunity to go out there and make the request and get those things preserved.

Now it can be tricky because we don't have yet subpoena power.

It's hard to go get court orders before there's even a case.

But there are things that you can do minimally.

Just go ask the on or to preserve it, send letters to preserve it.

And if you think that there's police involved, I've sent letters to the police

and say, I understand there may be surveillance footage.

I'm asking that you have it preserved. And guess what.

If they don't, they have to answer the questions later in court as to why not?

Why did you let evidence get destroyed, that you had some unique control over.

These are things that we can do now again,

without moving around in the mind field at all other things we

can do or actually go check out the scene of an alleged event or alleged crime.

I had a homicide case.

It was a self defense murder case.

The police, it was a shootout, literally a shoot out in the middle of a residential

street in Columbus, Ohio, and I got the case.

The next day, I talked to my client, and I

sent my investigator out there immediately to start working the scene.

Now you would think, well, didn't the police do that?

Didn't the police already investigate

everything that there was to investigate out there?

Well, I guess the answer is in a simple

way is I don't know, and that's situation I didn't know, but I wanted to find out.

So I sent my investigator.

Now he was an old school homicide, retired homicide Detective.

And he knew what he was doing.

He knew how to investigate a crime scene.

And we found stuff that the police left behind.

We did things that the police didn't do, and our investigation turned out to be far

more significant and thorough than the police investigation.

And it even resulted in

full blown pretrial hearings because we actually went out and my investigator did

what they used to call stringing the crime scene.

And that means doing a bullet trajectory analysis.

Now, in modern day and age, they do that

with lasers, and they have high tech equipment.

And it's become pretty developed science.

In the old days, they would just take a string.

And if there's two points, that bullet

passes through a wall, you can see generally what the trajectory is.

And you can take a string and run it in a straight line between those two

points and then take it back forward as far as you want.

And we did that.

Then we documented it and we had it on paper and we took pictures of it.

We even had video of it.

And the police didn't do that.

And at trial, the prosecution actually called the head of the state crime lab,

BCI, and I to try to discredit what we did.

In other words, they didn't do any bullet trajectory analysis.

They called the head of the state crime lab to criticize our own bullet trajectory

analysis and then somehow say that ours wasn't reliable.

And you can imagine how that went.

I mean, at the end of the day on cross

examination, I just basically asked this guy.

So let me get this straight.

You didn't go out there to look at the crime scene?

No.

Nobody called you out there to look at the crime scene?

No.

Nobody called you out there to actually do your version.

The high tech version of a bullet trajectory analysis?

No.

And you guys have some very high tech equipment.

Lasers, tripods, mirrors, all the stuff

that you've discussed here to do a proper bullet trajectory analysis.

That's correct.

And that in the old days, they didn't have that equipment.

No. They used basically a string and a couple

of police officers to just draw a straight line.

Yes. And that was the best they had then.

Yeah. And that worked well.

Yeah, it sort of worked.

But it would have been better if you had your own high tech equipment.

Yes.

And you know that most people don't have high tech equipment like that.

Well, no, they don't.

So the only way to really get that done is if somebody calls you.

Yeah. So let me get this straight.

You didn't go out there?

No, you didn't do your own test. No.

And the only reason they called you then is what just to criticize what we did.

And he's like, well, yeah.

And then the final question was, I'll bet

you wish that you had a chance to go out there and verify it.

Yeah, I do.

And you can't say anything we did was wrong or bad.

No, I really can't just.

We would have done it differently with modern equipment.

Alright.

Well, it turns out that that was the lynchpin of our case.

And the only reason we had the ability to

present that evidence at a trial is because we went out and did it.

The day after the incident, my client was

stuck in his mind field, but I wasn't stuck.

I could go do things and I did go do things.

And my investigator did things that ended up breaking the case later.

Now, that doesn't mean my client, who had every urge to go talk to the police and

every years ago talk to the other side or do whatever.

He was frustrated.

But he was stuck in the mind field.

And at least he knew that things were

getting done, and it made him feel a little bit less anxious and a little more

comfortable with the fact that we are doing what we can.

We were controlling our controllables.

So to sum it up, what do you do in your under investigation?

Well, the first thing you should do is

call us 614-224-6142, but understand here you're in a mine field and you don't know

where the mines are, and sooner or later you will.

Sooner or later somebody will come and show you where they are.

Soon or later, you'll get the map, we'll get the case, we'll get discovery, and

we'll understand what we can do and what we can't do.

The pressure will ease,

but early on, you're stuck in that mind field and you cannot move.

That doesn't mean you can't make moves, though.

You just have to do it carefully.

You have to do it with the advice of a

good criminal defense attorney, and you have to do it with a calculated purpose.

So another riveting Q and A s ession with Lawyer Talk Q and A.

If you have your own questions or you want

to get something answered, you can check us out at Lawyer Talk podcast.

Com. Submit a question there.

You can always call law Firm 614-224-6142 or look it up at Ohio Legal Defense.

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You can send your questions that way, and

we'll do our best either to talk to you in person.

If it's an ongoing legal matter, of

course, we'll do that probably in a privileged setting.

But if you want your question addressed

here, just let us know and we'll take care of it.

So until next time.

This is Lawyer Talk Q and A, off the record on the air, at least until now.