Cops
Talking to Prosecutors
District Attorneys, State Attorneys, or whatever
they are called in your area are the component of the criminal justice system
that prosecutes individuals accused of
crimes on behalf of the people.
In Florida, the State Attorney has the authority to
also investigate crimes by summoning witnesses to appear before them, §27.04, Florida Statutes,
2015. The usual process is the State
Attorney issues a subpoena to a witness requiring them to appear before the
State Attorney to be interrogated in connection with some type of crime.
A significant aspect of my law practice is
representing police officers in criminal and civil matters. I regularly receive calls from police
officers that have been asked to appear before a State Attorney. These appearances usually come about when the State
Attorney is assisting an internal affairs investigator. My clients are either witnesses to alleged
police misconduct or are in someway involved in the misconduct. This certainly makes for a sticky situation . Either my client is suspected of doing
something wrong or is going to be asked by the State Attorney to testify
against a fellow officer. Although the
State Attorney also compels civilians to appear before them, my comments here
apply specifically to police officers.
The State Attorney regularly issues subpoenas to appear for
pre-trial conferences, interviews and trials.
If you receive a proper subpoena to appear before a State Attorney you
must appear. Of course you will appear
with your attorney at your side if the appearance is related to your conduct or
a fellow officer’s conduct. The good
news is when appear and provide testimony you will be given immunity. Any conduct you admit to cannot be used to
prosecute you for a crime. The only
exception is perjury. If you lie to the
State Attorney you can be prosecuted for perjury. The State Attorney can only prosecute you for
the crime being investigated if they develop evidence independent of your
testimony. So if you appear before the State Attorney pursuant to a
subpoena and admit to a crime you cannot be prosecuted for that crime, subject
to the aforementioned.
Another instrument the State Attorney has used in
South Florida to get around granting immunity is the so-called “request.” A request to appear is not a subpoena and
therefore does not provide you with immunity.
The State Attorney has sent these requests to officers via subpoena
issuance systems as well as by mail. The
request states that your appearance and testimony are voluntary. If you appear voluntarily and admit to a
crime you can be prosecuted for that crime.
Your internal affairs can also use these statements against you. In other words, this type of request is an
invitation for you to come down and hang yourself. Think of the request as a length of rope.
When you appear voluntarily you put the rope around your neck. When you open your mouth voluntarily you are
jumping off the platform.
So what do you do if you get one of these requests
to appear before the State
Attorney? Call your union representative
or attorney immediately. Do not call the
State Attorney and certainly do not appear voluntarily. Allow your attorney to work with the State
Attorney to resolve the issue in your best interests.
Patrick
J. McGeehan, Esq. is a criminal defense and family law attorney in Miami,
Florida. He has over 20 years of law enforcement experience in the South
Florida region. Mr. McGeehan was a police instructor in several areas as well
as a court certified expert witness in D.U.I., speed measurement, accident
reconstruction and other law enforcement fields. Mr. McGeehan has been featured
on numerous national news networks, radio and print media regarding his legal
work. He can be reached at the Law Offices of Patrick J. McGeehan, P.A., One
Biscayne Tower, 2 South Biscayne Boulevard, Suite 3760, Miami, Florida 33131,
305-577-4933, patrick@pjmlawyer.com; www.pjmlawyer.com.
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