Should I talk to the police?
No. If you are a suspect do not talk to the police or make a statement without first consulting with a criminal defense attorney. Ever.
Many people know that they should not talk to the police without an attorney. It is a simple rule and many people know it well. However, despite this knowledge, too many people ignore the rule because they do not want to appear guilty. They fear that if they do not immediately talk to the police, they will be seen as guilty. Moreover, people mistakenly believe that if they hire a lawyer, the detective will assume they have something to hide. Those fears are misguided.
There are many reasons why you should not talk to the police without an attorney. This article explains why an individual should not talk to police without the assistance of counsel.
Exercise your Fifth Amendment rights.
An individual possesses a constitutional right to not talk to the police. The Fifth Amendment states in part: “No person shall be . . . compelled in any criminal case to be a witness against himself . . . . Every person subject to a police interrogation should exercise this right.”
If a person voluntarily walks into a police station to have a conversation with the detective, he or she will waive his or her Miranda rights. The Miranda protection will not apply.
Miranda rights are only implicated if the person is subject to a “custodial interrogation.” If someone has been arrested, or has been detained and cannot leave on his or her own free will, that person will be considered “in custody” for Miranda purposes. If the individual is arrested and in custody, the police must read the Miranda warnings before he or she can be legally questioned by the police. If the police do not read the Miranda warnings to a person who has been arrested before questioning, the statement/confession and the evidence that flows from that statement may be suppressed as a violation of the Fifth Amendment.
On the other hand, if an individual feels that he or she can leave the police station and is present on his or her own free will, he or she is likely in a non-custodial environment. Statements people make in response to non-custodial police questioning can be used against the individual even if the Miranda warnings have not been given because Miranda rights only apply to custodial interrogations.
The difference between a custodial and non-custodial interrogation is often the reason police ask people to come into the police station on their own to “talk” or “clear things up.” The police will often tell people that they are not under arrest and can leave at any time. When the police resort to such a tactic, all of the odds are in their favor.
The police want you to be off your guard. The police want to talk to you when you are vulnerable. The detective wants you to talk. He or she wants you to slip and blurt things out. They want you to make mistakes so they can use it against you. Do not forget that a police officer’s job is to get admissions and evidence from a person.
Most certainly the police do not want you to be prepared. The police absolutely know that you should consult with a lawyer. They know it is against your best interest to be unprepared. When you believe that the police are giving you only one opportunity to explain yourself, they are pressuring you to act against your best interest even though you know you should get a lawyer. Without an attorney, you do not want have time to collect your thoughts or understand the legal significance of your situation. One thing they certainly know is that, without an attorney, it is a professional experienced police officer vs. a civilian. The odds are in their favor.
You are at a disadvantage when you talk to the police without a criminal defense lawyer
What if I am innocent and have nothing to worry about, should I still not talk to the police without a lawyer?
Yes. An individual should not talk to the police even if he or she is innocent of the alleged crimes. Law Professor Explains why you should remain silent. Good, honest, people tend to believe the best about the police and criminal investigations. People often tell me,“I did not do anything wrong, so I can clear this up.” They also believe that nothing can go wrong because they are telling the truth. Unfortunately, telling the truth may end up hurting you. I know it is a cynical thing to say, but as a criminal defense attorney for nearly 15 years, I have seen interrogations on video and participated in them many times. Make no mistake, the police are trying to charge you with a crime.
Many people believe that if they go to the police station and explain themselves, they can talk their way out of a criminal charge. This seldom happens. In the interest of clearing himself or herself from any wrongdoing, an innocent person often tries to explain and talk a little too much. The more the detective gets the person to talk, the more likely it is that he or she is going to make a mistake. In fact, an innocent person tell a “white lie” to stay consistent with or bolster his or her innocence.
Moreover, an innocent person may not be able to accurately recall certain facts. Most people cannot recall facts accurately. Now imagine that you are trying to recall a story under pressure and duress of an interrogation. You will make a mistake.
If you mistakenly and without intent, tell a police officer an incorrect fact, the officer will believe you are lying. You can be charged with making a false statement to a police officer. For example, if a person mistakenly tells the detective that he or she was at Burger King on Friday night but was actually at McDonald’s, the detective will begin to question if the individual is lying.
If the police have evidence showing that the individual was in fact at Burger King, the detective will question the truthfulness the person’s entire statement. In essence, an innocent person may unwillingly talk himself or herself into unnecessary trouble.
An individual also faces the risk of human error. What if, during the discussion, the police officer remembers something wrong and puts that in the notes? If the police officer ever had to take the stand in a trial he or she will testify as to what the notes state. At trial, it becomes a credibility contest between the accused and the police officer. Unfortunately, juries are biased towards the police and prosecutor.
There is a benefit to telling your story one time. If you tell your story one time at trial, you weaken the prosecutor’s ability to challenge your statement. But if you’ve told your story multiple times, that is, during interrogation and at trial the chances are very high that, even if you are telling the truth, the facts contained in your statement are going to change. The inconsistency damages your credibility. A skilled prosecutor will notice the discrepancies and question you about them in an attempt to show the jury you are lying.
I started this section of with a cynical statement and I am going to end the section in the same way. It really does not matter if you are telling the truth. What really matters is if the police believe you are telling the truth. Contrary to the principle “innocent until proven guilty,” the police tend to assume guilt before innocence. With that belief in mind, they expect you to prove your innocence by talking to them. I am not saying that all police officers think this way. But, there are many that do. So, it is in your best interest to have lawyer present if you are faced with a police officer who believes you are guilty.
Under no circumstance is it up to you to prove your innocence. It is the prosecutor’s burden to prove your guilt beyond a reasonable doubt. You do not have to assist them in any way. Explaining yourself is often a useless endeavor. The more you try to convince them of your innocence, the more likely they will assume you are hiding something. In Hamlet, William Shakespeare wrote, “methinks thou dost protest too much.” Shakespeare suggested that people who protest their innocence “too much” are probably actually guilty of whatever they have been accused of committing. Excessive explaining can be a sign of a guilty conscience.
So, if in Shakespeare’s time the they believed that excessive explanation could be interpreted as a sign of guilt, what do you think the police believe today. In any event, “Protesting too much” is really a sign of nervousness and emotional stress. If people are accused of something that they did not do, they will profess their innocence under stress in excessive ways.
Do not give in to the pressure to immediately talk to the police. You do not have an obligation to explain yourself. Emotional stress, duress and pressure can lead to a monetary lapse of judgment or recollection. This is especially true if you feel intimidated or pressure. While under duress it is very easy to make a mistake that can be interpreted as a sign of guilt.
You have the right to remain silent – Invoking your Miranda rights
The Miranda warnings (for custodial interrogations) are quite clear:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
You have an absolute right to remain silent. That means you do not have to talk to the police if that is your choice. You also possess the right to have lawyer present with you during questioning. The Miranda warnings are read to you so that you are aware that you have a choice.
If you indicate to the police, in any manner, at any time, prior to or during interrogation, that you want to stop talking, the interrogation must cease. If you state that you want an attorney, the questioning must end until an attorney is present. Once you have had time to confer with an attorney, you may decide to continue or cease any subsequent interrogation.
Invoking your Miranda rights – your request for counsel must be clear and unequivocal
If you invoke your Miranda rights, the law provides that once a person requests counsel, all police questioning must stop. In order to invoke your you must clearly state that you want an attorney. Simply telling the officers that you do not feel like answering questions is not sufficient to invoke Miranda protections. If your statement for counsel is not clear, the police may try to convince you to keep talking.
Therefore, when faced with police interrogation you must clearly invoke your right to counsel. This means you must clearly and unequivocally tell the police officers that you will not answer any questions until you have consulted with your attorney.
Your criminal defense lawyer will help you decide if you will give a statement to the police. He or she can assist you with that statement as well.
An experience criminal defense attorney will help you decide if you should make a statement. At times, the refusal to cooperate with the police is not a good idea. At times it is. But, without experience you will not know what decision is the best to make.
For example, there have been times our office had went with the client to the police station to make a statement to the detective. The clients told their story truthfully. We had prevented charges from being filed. The matter had been closed by the police.