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 the conversation consistent with your guilt, while forgetting the parts consistent with your innocence. That’s because his goal in speaking with you is to prove that you’re guilty, not to determine the truth.
Solving crimes is hard work, and the NYPD has lots of crimes to solve: New York'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.
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, hunger, fear of jail, fear of ACS taking your children away from you, and other forms of psychological coercion.
These techniques are so effective that they often cause innocent people to confess to crimes that they didn’t commit – just to get the interrogation to stop. (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.
Even better than saying nothing, tell the police you want a lawyer. In New York, requesting a lawyer requires the police to wait for your lawyer to arrive (or to provide a lawyer if you can't afford one).
Your answer to every question should be: "I want a lawyer." If the police ask 1,000 questions, then each of your 1,000 answers should be: "I want a lawyer."
If you get tired of saying, "I want a lawyer", reduce your answer to a single word: "Lawyer."
If you are contacted by police, immediately retain a lawyer. The lawyer should consult with you right away, 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, if the detective illegally questions you without your lawyer present, you must remain vigilant and never speak with police.
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 precinct, 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 photo.
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.