Have you ever stopped to consider what you would do if you were suddenly faced with the prospect of getting arrested and being asked by the police to speak to them? Most of my law abiding clients never consider such circumstances since they do not foresee the possibility of ever having problems with the law. Unfortunately, life is not always predictable, and some of us may find ourselves in a compromising position when the police attempt to speak with us.
In this article I will provide you with useful information in the event the "unimaginable" happens and you are accused of committing a crime. As you will read, there are several reasons why it may be in your best interests not to speak with the police until you have first spoken with an attorney.
First of all, the police may not be able to make a case against you without your statement. It is a little known fact that obtaining a confession or incriminating statements from the accused is the number one tool law enforcement officers rely on in making their case. Approximately 70 percent of all criminal cases filed by the District Attorney's office have sufficient evidence for filings, only because the accused made a statement to the police. Consequently, police officers are specially trained to illicit statements from people accused of crimes. They are sent to special schools where they receive training on how to use psychology and to employ tricks to get people to speak. And in case you didn't know, it is perfectly within the law for police officers to use trickery or to tell lies in order to obtain a statement.
When you are accused of a crime, giving your "side of the story" to the police is usually the wrong thing to do. As the popular former prosecutor and noted author - Vincent Bugliosi once wrote, getting a statement from the accused almost always favors the prosecution. Once the government has your version of the incident, you are pinned down as to certain facts, and the government will spend countless hours tearing your story apart. Prosecutors are taught to use defendant's statements in trial, even when they are self-serving, since the statements are usually more helpful to the government's case than harmful. Thus, as the Miranda warnings state, "your statement can and will be used against you."
Contrary to popular belief, the police are not required to give you the Miranda warnings prior to speaking with you in all situations. Miranda warnings are only required when the police have you in a "custodial" situation, i.e., when you are not free to leave. Therefore, there are many situations where the police can contact you and speak to you without having to give you the Miranda rights. For example, police officers frequently make telephone calls to people suspected of crimes and obtain voluntary statements without having to give Miranda warnings. Incidentally, these phone conversations are usually secretly tape recorded which the police are authorized to do! Also, officers frequently ask people to drop by the station to give a statement, or they drop by your house to talk to you. So long as the Court finds you were "free to leave," the police are not required to "Mirandize" you before speaking to you.
Experienced defense attorneys know the value of going to trial when their clients have not spoken, since the government's case may not be very strong. When the accused has not provided the police with a statement, his or her attorney has the opportunity to analyze the government's case before making an opening and closing statements or deciding if a particular witness should testify. Conversely, when you speak to the police you will probably eliminate most of the defenses your attorney can employ on your behalf.
Assume that the police want to speak with you as a "witness." The police tell you they do not consider you as a suspect and they believe you possess information that may be helpful in their investigation. Before speaking to them, you may want to ask yourself, "What's the hurry?" In most circumstances, the police can wait long enough for you to consult with an attorney, since they are contacting you after the incident and there is no emergency that requires your statement. Furthermore, if the motives of the police are as innocent as they sound, the police should be willing to wait until you have consulted with an attorney.
Many people, who are aware of their rights not to speak to the police, waive their Constitutional rights, because they are afraid of looking guilty. Believe it or not, many Police officers and Prosecutors accused of crimes (and who should know their rights better than the rest of us) frequently waive their rights, and end up ruining the defenses they may have had.
When you find yourself in need, do not hesitate in exercising your Constitutional rights. Remember, exercising your Constitutional rights can never be used against you in a criminal case. Thus, if you find yourself in a situation where you don't want to speak to the police, just tell the police, "I'd like to speak with you, but first I will need to speak with my attorney to ensure my rights are protected."
Copyright 2005, Donald P. Schweitzer