Why Talking To The Police Is Never A Good Idea

I'm a battle-hardened criminal defense lawyer, so it always surprises me how weak in the knees I get when a policeman pulls me over. The urge to confess runs rampant, even if I haven't done anything. I assume the authorities must have a reason for wanting to talk to me. What have I done?

Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.

I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.

So here are some common myths and misconceptions about what you must do when the police come calling.

1. The police can order me down to the station to give a statement, correct?

Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.

But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.

An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.

News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.

The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.

2. When the police show up at my house, I have to talk to them right?

Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.

This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.

Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.

3. If the police don't read me my rights, they can't use anything I say, right?

Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.

If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)

This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.

Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.

I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.

Comments: (4)

  • Nice site, very informative. I like to read this.,...
    Nice site, very informative. I like to read this.,it is very helpful in my part for my criminal law studies.
    Posted on April 20, 2010 at 5:21 pm by SEODinah
  • Thanks for this post. So true! The problem is, you...
    Thanks for this post. So true! The problem is, you will never reach the targeted audience with these types of postings on this blogsite. This is the second four-point warning you've posted in recent days.
    We are taught from childhood to respect and trust law enforcement officials. Certainly I was. Until you are permitted to go into the public schools and colleges of CT and tell the students that you cannot trust law enforcement--that it is total lie--your well-meaning admonishments will fall on deaf ears, or the ears of the existing true-believers. Been there, done that. Trust it. Google my name. I have nothing to hide, and a lot to complain about.
    Unfortunately, there is another side to the argument which you have not presented. There are occasions upon which, if you act 'normally' and/or 'respectfully' toward law enforcement officers, they will give you the benefit of the doubt and let you just might get off with a verbal warning or a minor written citation which is easy to dispose of. This has happened to me in my lifetime a number of times in more than one jurisdiction. (One is always grateful when the cops understand your unfortunate/inadvertant circumstances and give you the 'benefit of the doubt'. These days, that seems to be increasingly rare?!?)
    I personally cannot tell a corrupt, incompetent, sadistic/masochistic, anally-retentive cop by looking. In their uniforms, they all look the same to me. (Likewise, I cannot tell a crook by looking. Some nasty looking folks are actually teddy bears. Some choir boy, on the other hand, might be a schizophreniac mass murder and mutilator. How can I know for sure?)
    So, to me, these types of postings are nothing more than p!$$ing in the wind. If it makes YOU feel good, well then so be it. The problems with law enforcement and the criminal 'justice' system run far deeper than this essay would suggest. There is a vast literature out there for those with the curiosity and energy to research. All you really have to do is look at the headlines in the local news sources over the past couple of years to reach this incontrovertible conclusion,...or my name is not Doriss.
    But hey, I admire your courage and your repeated attempts to bring these very important issues to the forefront of public consciousness. Keep trying. Someday, you may achieve some recognizable successes, but probably not in our lifetimes. And I really hope I'm wrong,...
    Posted on April 20, 2010 at 9:14 am by William Doriss
  • W:
    That might work assuming you get a straight an...
    That might work assuming you get a straight answer. But a savvy cop won't answer. Most likely, the client will be given some meaningless gobbledygook that a reasonable person might infer was a "no." The Court will then declare the no to not really mean no, and the person will be screwed.
    If a person insists on speaking to the police, and doesn't want to get a lawyer, they should insist that the entire interview be electronically recorded. Police do lie, after all. And we forgive them for it out of our mania to feel safe.
    Posted on April 20, 2010 at 8:16 am by Norm Pattis
  • Great post, Norm.
    Regarding telling whether you a...
    Great post, Norm.
    Regarding telling whether you are in custody or not, the FlexYourRights folks suggest asking the cops if it's okay for you to leave. If the answer is no, then you're in custody. What do you think?
    Posted on April 20, 2010 at 8:12 am by Windypundit

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