Sunday, December 24, 2006

Practicum: The Federal Agent

Practicum: The Federal Agent
Deviant Survival Guide
Copyright 2006 by drewkitty

Everything I've said about police applies to Federal agents, except that their tactical and people skills generally suck ass.

They make up for it with enormous and broad powers combined with a much higher level of bureaucratic and administrative competence.

This section is largely taken from a linked article courtesy of a well known security list. My earlier version was, "If you are being spoken to by a police officer after you have been arrested, or a police detective or investigator (or agent) at any time, SHUT THE F@#% UP AND STAY SHUT THE F@#%'D UP. The only words that will come out of your mouth, aside from the veriest trivia such as 'My cuffs are way tight' or 'May I use the bathroom?' [No.] shall be 'I'm sorry, I can't answer any questions without my attorney present."

from: on being interrogated by Federal agents

"Whether you speak, what you say and how and when you say it can have a profound effect on your future when you find yourself involved in a [Federal] investigation."

Is there an intelligent alternative to lying or telling the truth that we have not yet examined?

Yes. In our hypothetical interview, you can politely decline to be interviewed by the FBI agent.

Tell the agent that you have an attorney and that "my attorney will be in contact with you." If the agent persists, say that you will not discuss anything without first consulting counsel. Ask for the agent's card, to give to your attorney. If you have not yet hired a lawyer, tell the agent that "I want to consult a lawyer first" or that "an attorney will be in touch with you."

The absolutely essential thing to keep in mind is to say nothing of substance about the matter under investigation.

It is preferable to do this by politely declining to be interviewed in the absence of counsel.

And then what?

If the agent asks "why do you need an attorney?" or "what do you have to hide?" do not take his bait and directly respond to such questions. (Do not even say that you have nothing to hide.)

Simply state that you will not discuss the matter at all without first consulting counsel and that counsel will be in touch with him. If the agent asks for a commitment from you to speak with him after you have consulted or retained counsel, do not oblige him. Just respond that you will consult with your attorney (or "an" attorney) and that the attorney will be in touch. And by all means do not get bullied or panicked into making up a phony reason for refusing to talk. You are not obliged to explain your decision to anyone.

What if the FBI agent threatens to have you subpoenaed to the grand jury if you don't talk? Simply repeat your mantra that you will not discuss the matter with him in the absence of counsel. (If you are already represented tell the agent that you authorize your attorney to accept service of the subpoena. That way you will not have to be embarrassed at work by the FBI's service of a grand jury subpoena in broad daylight.) What if the agent already has a subpoena and serves you with it?
Thank him and tell him that your attorney will be in touch.

It is crucial to note that affirmatively declining to discuss the investigation in the absence of counsel is not the same thing as remaining completely silent. If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence.

Your invocation of counsel, however, cannot be used against you at trial. United States v. McDonald, 620 F.2d 559, 561-64 (5th Cir. 1980). Your refusal to talk substance in the absence of counsel will force the prosecutor to decide whether your information is important enough to justify a grand jury subpoena for your testimony.

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