Talking to the Police
I am often asked about whether you should talk to the police. The straight answer is no. If you feel that you need to talk to a police officer you have a constitutional right to have a lawyer present. At that point any questioning should cease. This is a right guaranteed to you under the Fifth Amendment of the United States Constitution. You should use that right and wave it at your peril
“One of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness as well as those of a wrongdoer, may prove the government incriminating evidence from the speaker’s mouth. ” Ohio v. Reiner, 532 Us. 17, 20 (2001)
Below is a list of things that can go wrong if you do decide to talk to law enforcement. The reason that the officer may want to talk to you is that they do not have enough information to charge you. The point of the interview is to gain that information.
1. You can’t talk your way out of getting arrested. Let’s face it, if officers are wants to arrest you he will do so anyway. Nothing you can say will allow you to be released. So the idea of talking yourself out of getting arrested is a fallacy of your own mind.
2. You can’t give them any information that will help you. Information which could help you is called exculpatory. Exculpatory information may not be recognized as being exculpatory by the police officer who has the sole decision on the question of an arrest. Very oftentimes officers do not look for exculpatory information or evidence. Their sole purpose is to make an arrest.
3. You may admit guilt without any benefit. If you admit guilt you do so without the benefit of a plea agreement. In other words, why should they settle the case when you’ve already admitted guilt. If you want to admit guilt you should do that so through your attorney. At least he can then negotiate a plea agreement where you get the benefit of admitting your guilt.
4. You may be innocent and make a confession unintentionally. If you are intoxicated you may not be aware of what you’re saying, or the import of what it means. Someone under stress or mentally defective may be innocent but may still talk. And those words may be later viewed as a confession.
5. Innocent mistakes in interviews can be used against anyone. A partial sentence, not of the head or word inflection can make all the difference in the world as to whether someone thinks you are guilty or not. As in sarcastically saying, “Yeah, I kill President Kennedy.)
6. Innocent facts can be used to convict an individual. The point here is that you do not know what the facts are. You experienced an event only through your eyes and in your own body. You do not know what the crime is that is being investigated. You could actually be “in the wrong place at the wrong time”. That is why there is that expression.
7. Even if you are innocent and only tell the truth things can go wrong. If you do not not tell the police anything incriminating there is still a grave chance that your answers can be used to crucify you if the police don’t recall your testimony with 100% accuracy. That is why body cameras and recording devices are often used to document what is said and done. But even these devices can be altered if not properly monitored, logged and preserved.
8. Even if you are innocent and only tell the truth and do not tell the police anything incriminating and the entire interview is videotaped, your answers can still be used to crucify you, if the police have any evidence (even if mistaken or unreliable evidence) that any of your statements are false.
9. People are inherently truthful, but foolish and anyone can out smart themselves. The world is full of people who thought they were going to outsmart someone. And you probably have been in that category more than once but have been afraid to admit it
10. The policeman’s job is to develop probable cause. A policeman’s job is to make arrests. Ask a policeman yourself some time which is more important- law enforcement or public safety? The answer may really surprise you.
11. The police are Professional interviewers. How many people have you interviewed? A police officer undergoes extensive training to get his badge. He then goes through additional hours of training each year to keep his training current. They are also training every time that they go to work. How many questions you think they ask a week. It is against this professionalism that you risk your freedom when you make a statement.
12. People don’t listen to the Miranda warnings. Under the case of Miranda versus the State of Arizona you have the right to remain silent. These are called your Miranda rights. The officer before he begins to question you will read you those rights. Very often time he reads them from a card just so that he will not leave out any of the details. You can hear those Miranda rights over and over but most people don’t listen to them or even know what they mean after they have heard them. Oftentimes the officer blows past the warnings and merely says, “Tell me what you know.” Lastly, Miranda rights do not uniformly extends to every charge. The Supreme Court of the United States has held that in the case of misdemeanors (crimes which are minor and entail a sentence of less than a year) they should be applied on a case-by-case basis and from a totality of the circumstances. So the officer may or may not read you your Miranda rights – and if you hear them you may not appreciate what they mean.Before the defendant addresses the warnings, “Let me tell you what I know.”
13. The police will try to get into you head. The officer will try to get into your head to get you to speak to him with his body language or offering you water or a soft drink. Relaxing his tense demeanor to one of being your friend. Oftentimes officers play “good cop – bad cop”. This characterization did not come out of the movies but from real life where in one officer may try to be your friend and the other officer be more aggressive. If they can get into your head you are more willing to talk.
14. People want to talk because they hate silence. You have been to a party many times and hurt someone who rattles on. This is a person who cannot be at peace with themselves. A police officer can put you in a situation and wait until you open your mouth by then you can’t defend yourself.
15. No such thing as off the record. Everything in the interview room is being recorded. The police recording is always on. So if you think that there is a time when the officer is going to kick back and let you talk without using it against you need to think again. They are always listening and taking notes. Confessions have even come from recordings managed by one of your codefendants. Who has already copped a deal.
16. The police interview is ALWAYS an unlevel playing field. Let’s face it it is their job to get convictions. They only have a level playing field because the law says they must have a level playing field. However if you voluntarily give up that level playing field you lose.
17. Police phone calls are always recorded. Police phone calls, especially in jail for always recorded. So if you think they are not recording what you say over the phone to your girlfriend, mom or dad or even your attorney think again. There are no confidential phone calls out of the jail
18. People think they are too smart to be arrested. People think they are too smart to be arrested. But everyone can be outwitted, deceived are out flanked. History is littered with naïve people and naïve defendants. It is just the nature of being human.( But are stupid.)
19. Don’t need a recording to take a statement. Please do not need a tape recording to make a statement. They have been taking statements even before there were recording devices. They are all called confessions. In the old days they could get you beheaded now you can be convicted.
20. The Police are professional witnesses. Police are professional witnesses and have gone to school many hours to learn how to describe what they see and others do. They are aware of their burden of proof and they know how to secure a conviction so whatever you say or do in front of a police officer will be put in the best light for them to do their job. They very rarely “rat out” another officer. It’s those officers that we need more of.
21. The police will have their notes… The police will have their notes. That is if they are helpful to them. Alternatively they may lose their notes when it is helpful. They will say that they did not maintain their primary notes because they use them to make the police report and after they did the police report there was no need to keep them. I have long maintained that a policeman’s primary notes or more definitive than the police report. This is because the primary notes often maintain the officers present sensory perceptions better than a uniform report.
22. The perception is that a person has to prove their innocent. Despite the legal requirement that the police must prove a person innocent beyond a reasonable doubt there is a common perception that a person has to prove their innocence. The state and the police always have the burden of proof and this perception is something that everyone must guard against. If you are talking to the police you are playing into that perceived requirement.
23. The Police will always destroy the tape. The police will always destroy their recordings. They may not call it destruction but they will call it recycling these recycled video and audio recordings is legitimized destruction of evidence. Lastly they do not have to have a videotape or audiotape to make their case. All we have to do this with the uniform on, walked to the witness stand as their leather belts creak and turn to the jury and state what happened. So the presence or absence of a videotape is not essential to a conviction. They don’t have to have video tape.
24. Lastly, the police are allowed to lie to get a confession. Think about it, they ask you to write an apology letter to show how sorry you are and all of a sudden it becomes a confession.
This is only a partial list of why you should not talk to a police officer. If you need more, you have to read thoroughly and are not listening