A post today on the “Personal Liberty” Facebook page on the subject of how to interact with law enforcement prompted me to both respond there and to address the subject here.
In his interesting interview about how to respond to attempted over-reaching by law enforcement officials, Attorney Evan Nappen emphasized three responses with which I agree — invoke your right to remain silent, demand your right to speak with an attorney and never consent to anything until you have spoken with an attorney.
Expanding on those basics a bit:
Never submit to a police interview, even if you are innocent. I have seen many cases in which innocent responses to accusatory questions were twisted to make the suspect look guilty. Even statements which you believe to be exculpatory can ultimately be used against you. On the other hand, anything you say which is truly exonerating is generally not admissible in court, so you can’t help yourself by talking to the cops.
Contrary to popular belief, if the cops have enough probable cause to arrest you, you are not going to be able to talk your way out of that arrest. And don’t even think about believing it when a cop says he can help you out if you talk to him or that you can help yourself by doing so. The only objective of a police officer interrogating a suspect is to gain additional evidence to make proving the case easier. Furthermore, cops have no authority to make “deals” about criminal prosecutions; only the prosecutor’s office can do that.
Even denying that you committed any crime won’t help. For starters, the cops won’t believe you … and the denial will not be admissible in court, so you gain absolutely nothing by making such a statement.
There are other good reasons for not talking to the cops — even if you’re innocent, you might tell a small lie or even just make a mistake, either of which can be used against you in court. And, unless the statement is being video or audio recorded, the cop may mis-recollect or even lie about what you said. I recently tried a child molestation case in which my client said within hearing of a police officer, “I just tickled her”, but the cop who heard the statement testified that he said, “I just diddled her”. The statement was not recorded and the jury believed the cop’s version. In the end, this made a huge difference in the minds of some of the jurors. Maybe the cop mis-understood what was said and maybe he lied about it. In either event, this damaging statement could not have been used against the defendant if he hadn’t made it to begin with.
By the way, this is true even for such simple situations as traffic stops. For example, if a cop stops you and asks if you know why, do not answer because whatever you say can be used against you if you decide to fight the ticket. If you feel coerced by his position of authority into answering, the only acceptable answer is “no”.
Because of the inherent dangers in speaking with the cops, always invoke your rights to remain silent and to speak with an attorney before answering any questions.
Never consent to anything. Without a warrant, police cannot enter your home. So, if they ask if they can come in, the answer is “no”. If they ask you to step out of your residence, the answer is “no”. If they ask you to open the door to your residence, the answer is “no”. If you’re in a vehicle and they ask if they can search it, the answer is “no”. If they ask if they can search your person, the answer is “no”. Do not let them intimidate you into consenting, either. Politely suggest that if they think they have grounds to conduct a search, they can get a warrant, at which point you will let them search.
If the cops have probable cause to arrest you, they will do so and you’ll have to go with them involuntarily. If they don’t have probable cause to arrest you, they cannot compel you to go anywhere with them. So, if they ask if you’re willing to go to the station to be interviewed, the answer is “no”.
Also, do not be fooled by the old, “if you have nothing to hide, you’ll talk to us” trick. If you have nothing to hide, refusing to answer questions, consent to a search or go with the cops cannot hurt you. Answering questions, consenting to a search or going with the cops can hurt you even if you have nothing to hide.
Finally, even if you’re actually guilty, don’t admit it to the cops. There will be plenty of time later, during plea bargaining between your attorney and the prosecutor, for you to accept responsibility for your actions. The terms of any plea agreement … and, in particular, the amount of time that you might have to spend in jail or prison … may well depend on the strength of the prosecution’s case. So, don’t help them increase your ultimate punishment by making incriminating admissions.
So, to reiterate the primary points, never talk to the cops, always invoke your rights to remain silent and to consult with an attorney, and never consent to anything, particularly searches by the cops of your person, vehicle or residence.
For a detailed constitutional discussion of the 5th Amendment and why you should never talk to cops, see this video by Regent Law School Professor (and former criminal defense attorney) James Duane:
For more on why you should not talk to the cops, also see this video of my KRON-TV (Channel 4) interview on June 23, 2010, uploaded on YouTube November 29, 2010. In it, I discussed the impact of the US Supreme Court case of Berghuis v. Thompkins, which was decided on June 1, 2010.
Berghuis essentially held that individuals must affirmatively and unambiguously invoke their rights. Simply remaining silent and declining to respond for an extended period of time (3 hours in this case) is not, by itself, enough to constitute an invocation of rights.
For the full text of the Berghuis decision, see:
The “Personal Liberty” Facebook page is here:
And the article on the “Personal Liberty” webpage with the interview of Attorney Nappen is here:
My Facebook page is here: