Simply asserting your right to remain silent and right to counsel will not stop the police from trying to get you to admit to crimes. These admissions can be used in court. The only way to protect yourself is to speak only to your lawyer about your case. A lawyer can only protect your rights if you do not speak to other people about your case.
The Oregon Supreme Court has decided that the Oregon Constitution’s protections do not protect a defendant from police questioning outside the presence of his attorney before arrest or outside compelling circumstances.
In State v. Davis (2011), the Defendant was under investigation for sexual abuse. He retained an Oregon Criminal attorney and that lawyer sent the police a letter on Mr. Davis’ behalf advising law enforcement that Mr. Davis was represented and should not be questioned outside the presence of the lawyer. Eight months after this correspondence, the detective working on the case learned that Mr. Davis was contacting the alleged victim through an instant messaging program. The detective had the alleged victim come into his office and he instructed her on what to type to elicit incriminating responses from Mr. Davis. Based on the incriminating responses obtained through those “pretext chats,” the police obtained a search warrant and gathered enough evidence to charge Mr. Davis with a crime.
The Oregon Supreme court held that despite the invocation of counsel, Mr. Davis was not protected from this police action by the Oregon Constitution. Under Article 1, Section 11, the guarantee of the right to counsel only applies in criminal prosecutions. Using textual, historical and case law analysis, the Court decided that the criminal prosecution had not yet been initiated as Mr. Davis had not yet been arrested or charged. Using a similar analysis under Article 1, Section 12 of the Oregon Constitution, the Court found that despite Mr. Davis’ invocation of his right to remain silent without the assistance of his attorney, he was not compelled to make incriminating statements because the circumstances of the pretext chats were not compelling. He was not in custody, nor were any threats or promises used to compel him to incriminate himself. The detective used sneaky investigation techniques and Mr. Davis was fooled into making incriminating statements. By it’s very nature, the pretextual contact with police was not compelling because Davis did not know he was talking to anyone but the alleged victim and she wasn’t threatening him.
What does this mean for the accused in Oregon? We tell our clients not to talk about their case to anyone but their Oregon Criminal Defense lawyer. We say: let your lawyer do the talking with the police.
By James F. O’Rourke Jr.
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