Never Speak with Police
A detective calls. Says he just wants to talk. Wants your side of the story. Doesn’t say he’s going to arrest you. He sounds reasonable . . .
Always remember: when the police want to speak with you, you should never speak with the police. If you have any doubt, call a criminal defense lawyer. Call two. Erase all uncertainty from your mind.
The detective is trying to persuade you to tell him anything. The problem for you is that the detective will never believe you unless you confess to the crime that he’s investigating.
Tell the truth; tell a lie; say a little or a lot; innocent, guilty, or somewhere in between. It doesn’t matter. The police will arrest you no matter what you say. Of course, they won’t tell you this up front. They might even encourage you to believe otherwise.
The police want to speak with you because they already possess evidence that you committed a crime: even if you didn’t commit a crime, the police possess some evidence tending to prove that you did. That’s why they want to speak with you: they think you did it.
For example, if one “witness” says he saw you commit a crime, the police have enough evidence to arrest you. It doesn’t matter if that one witness is your mortal enemy; if that witness has a financial motive to falsely accuse you; if he’s a known liar. No matter how innocent you are, no matter how charming and persuasive – you will never talk your way out of getting arrested.
Since the police will arrest you no matter what you say, do not, under any circumstances, speak with police without having a lawyer physically present with you. (Being physically present is the only way your lawyer can cover your mouth with his hands to prevent you from speaking.)
You have the constitutional right to remain silent. Use it. Always! No exceptions. If your lawyer isn’t present, keep your lips sealed. (And don’t write anything down. And don’t use body language either.)
There’s nothing the police would like better than to get you talking. However, you must understand that there are an unlimited number of ways in which a conversation with the police could go wrong – for you, not the police. For example:
1. You might confess to a crime that you committed.
If you ever feel the need, confess to your lawyer; no one else. Communications with your lawyer about crimes committed in the past are privileged and confidential: your lawyer may not repeat your confession to anyone. Once the urge to confess has passed (it will), you will be pleased that this rule exists. Confess to your lawyer and no one else: relieve your conscience without going to jail. If you wish, you can hire one lawyer to confess to and a second lawyer to defend you.
2. You might admit one or more facts that tend to prove you guilty.
You might admit being present when the incident occurred; you might admit knowing your accuser; you might admit having had consensual sex; you might admit having stabbed your accuser, in self-defense. Each of these admissions is a nail in your coffin. Consider, instead, allowing the police to build their case without any help from you.
3. You might lie to the detective.
Every innocent person knows of at least one fact that makes her guilt appear more likely. The temptation to lie about such facts is great. However, lying to the police is a really bad idea. If you tell one, single lie that can be disproved, the prosecutor will have a basis to persuade the jury at your trial that your lie proves “consciousness of guilt” – that is, a) you lied to hide the truth, and b) only guilty people do that. This would be an unfortunate turn of events, especially if you’re innocent. (Notice from these last two examples, whether you lie or tell the truth, you’re worse off than if you’d said nothing.)
4. The detective might misunderstand you.
You don’t have a constitutional right to be interrogated by an unbiased detective with perfect listening skills. And let’s be frank, you don’t always express yourself with unerring precision. If something gets lost in translation (it will), you and only you will pay the price.
5. The detective might not remember everything you say.
How could he? He didn’t record your conversation. He didn’t even take notes. In fact, he didn’t begin writing down anything you said until several hours after he finished speaking with you. Unfortunately, he will tend to remember the parts of your conversation consistent with your guilt, and he will tend to forget the parts consistent with your innocence. That’s because his goal in speaking with you is to prove you’re guilty, not to determine the truth.
6. The detective might lie about your statement
Let’s face it, solving crimes is hard work, and the NYPD has lots of crimes to solve: it’s a big city. For the detective who interrogates you, perhaps the temptation to “solve” the case by inventing evidence – from words you never spoke – will be irresistible. The detective might falsely claim you made incriminating statements that in fact you never made. This happens a lot more than you would imagine. Really. No matter how much you imagine it might happen, it happens more.
7. You might confess to a crime that you didn’t commit.
Detectives are trained (formally and informally) to use time-tested techniques designed to elicit confessions. These techniques include deceit, false promises, physical force, threats, sleep deprivation, bathroom deprivation, fear of jail, fear of ACS taking your children, and other forms of psychological coercion. These techniques are so effective that they often cause innocent people to confess to crimes they didn’t commit. (After mistaken identification, “false confession” is perhaps the greatest cause of wrongful convictions in the United States.)
Fortunately, in this country, you have the constitutional “right to remain silent”, also known as “the Fifth Amendment privilege against self-incrimination”: your refusal to speak with police can’t be used against you in a criminal case.
Exercise the privilege. Never speak with police who are investigating you. You shouldn’t lie to the police, but you can, and always should, remain silent. You would be shocked at how many people fail to heed this simple advice, which requires only that they say NOTHING.
Say Nothing. Not One Single Thing. What Could Be Simpler?
When you retain a lawyer, the lawyer should consult with you, contact the detective, and inform the detective that you’re represented by counsel and that the detective may not speak with you. By doing this, your lawyer will prevent the detective from legally questioning you. However, in the event the detective illegally questions you without your lawyer present, you must remain vigilant and not answer any questions.
When your lawyer tells the detective that he may not question you, the detective will most likely tell the lawyer that he intends to arrest you. Don’t use this turn of events as an excuse to start speaking!
The detective always intended to arrest you – long before the moment he introduced himself to you on the phone. However, his goal was to speak with you first, at the stationhouse, hoping to strengthen the case against you – and then arrest you. Don’t think for a moment that the detective decided to arrest you because your lawyer wouldn’t let him question you, or because you asked to speak with a lawyer, or because you refused to speak.
After you “lawyer up”, your lawyer will arrange for you to turn yourself in (“voluntary surrender“) within the very near future (sometimes hours, sometimes days). Voluntary surrender involves meeting the detective at her office at a predetermined time, to be formally arrested. At your lawyer’s request, the detective will not question you, other than to ask for “pedigree information” (name, date of birth). The detective will also fingerprint you and take an arrest photograph.
Voluntary surrender is far better than being arrested on the street. First, voluntary surrender is good for your health – it eliminates the need for police to forcibly arrest you. Second, it demonstrates that you’re not a risk of flight; so at your arraignment, the Court will be more inclined to release you without bail (“on your own recognizance” or “R.O.R.”), or to set low bail. Third, voluntary surrender reduces the time you spend in police custody before you see a judge.
If the police want to question you or arrest you, contact a criminal defense lawyer immediately, to intervene on your behalf – before you spill your guts.
Whether or not you choose to speak with a lawyer, NEVER SPEAK WITH POLICE .
Bruce Yerman is a New York City criminal defense lawyer. Contact him at 646-360-0290 for a free consultation.