Always Remain Silent - What to Do when Questioned by the Police

I have practiced criminal law for over 30 years. I am still mystified as to why people under investigation speak to police. To try to help my clients I have placed on the back of my card the following:

My lawyer has told me not to talk to anyone about my case, not to answer questions, and not to reply to accusations. Call my lawyer if you want to ask me questions, search me or my property, do any tests, do any lineups, or any other identification procedures. I do not agree to any of these things without my lawyer present and I do not want to waive any of my constitutional rights. If I am being charged with DUI, I agree to a breath test.

Unfortunately too many people reach my office after they have spoken.

Let me be succinct: Of those of my clients convicted of an offense, 90% or more are convicted, at least partially, by something that came from their own mouths. The reasons clients give me for speaking are legion: “I just wanted to be cooperative; the police threatened me; I had nothing to hide;” etc.

Yet all excuses beg the question: Can you severely prejudice your case – guilty or innocent– if you speak to police. The answer is an emphatic “YES.”

I would note that a common misunderstanding among Americans is the fear that refusal to answer implies guilt. Whether this is true or not or what people may think of your decision to exercise your Fifth Amendment right (i.e. silence), should be dramatically overshadowed by the fact that what you consider a simple answer could land you in prison.

The fact is, if you allow the police to question you absent legal representation, anything you say can and will be used against you in court. “Cooperating” with the police without an attorney will only hurt you, primarily because your statement can only be used against you, and never for you.

Police are trained in psychological methods to get you to talk. Moreover, when you speak, they may paraphrase any statement you make and twist it to imply guilt. When you think you are just being a good citizen, police may be paraphrasing your words to help get a case off their blotter. Not all statements must be electronically recorded.

This last point bears emphasis. Many states do not require statements to be recorded, let alone video recorded. When you waive your right to remain silent, police may simply take down notes and then say what they allege you said. Even of those state’s that require formal confessions to be taped, they don’t usually require tapes of supposed voluntary statements when you are not in actual “custody.”

“Custody” is a subject on which I could write a thesis. Suffice it to say that if you are supposedly free to leave, you may not be in custody from the standpoint of the law. If you are not in custody, police do not have to read you your rights.

Too many wannabe lawyers thought they’re statements were immune because they had not been “read their rights.” Wrong, anything you say in or out of custody will be used against you. Indeed you may be free to leave when you enter a police station, especially if you keep your mouth shut, but could find yourself arrested if and after you decide to talk.

Another misconception is that unless your statement is “formal” i.e. recorded, it won’t be used against you. Don’t be mislead. The fiction of a “formal” versus an informal statement is a law enforcement euphemism. Any discussion, anything you say “on or off the record” is fair prosecutorial game.

You are best protected – innocent or having done something inappropriate under the law – remaining silent at all stages of your interaction with police. Even for the “guilty,” keep in mind the notion of overcharging. One may be culpable of a minor offense but their words could be paraphrased to make it seem that they are guilty of much more serious offenses.

I would be remiss is I didn’t also say something about those “civic minded” souls who speak because they just want to be helpful or didn’t want to seem guilty. The proof is in the pudding. Frankly, almost every “helpful” person I have represented has had the book thrown at them, meaning they ended up having every charge that an officer could imagine filed against them. As to the implication of guilt, please remember that for the most part, the invocation of your right not to speak cannot be used against you.

Unfortunately, in the event of a trial, your statement cannot be recalled in your defense because in this capacity, it is considered hearsay. If it sounds like the intention is to trick you into incriminating yourself, it is! Most police officers will not fall short of intimidation in attempting to solicit your “cooperation” in being questioned without representation. They understand the law, and know that the more they can get you to say, the better the chance of conviction.

It is astounding to note that The Innocence Project reports that 25% of all DNA-exonerated prisoners made incriminating statements, gave outright confessions or plead guilty while being questioned without an attorney. Moreover, 86% of all defendants plead guilty before trial. WHY?! Even if you are guilty, there is no reason for you to clear your conscience to the police without legal consultation/representation.

It is your lawyer’s business to advise you of your rights, what to say, what not to say, and use all of this to advocate in your best interest. The legal profession is considered a “profession” because, while all laws and rights are readily available for citizens to read, learn and exercise, realistically, most of the population is completely unaware of the complexities and nuances of the American legal system - and what’s worse, the system’s inclination to harm you rather than protect you.

This is an attorney’s function…to protect you from the law. There are twenty seven thousand pages in the Body of Federal Criminal Law. This translates into over ten thousand random, miscellaneous ways to convict you of crimes you didn’t even know existed.

So if ever you are approached by police for “simple questioning”- please - JUST SAY NO or insist that your lawyer be present no matter how intimidating, threatening or even violent the encounter may be. It is far better to take abuse up front than to make a statement that can be used to hurt you for a much longer period of time.

William H. Buckman Law Firm
110 Marter Ave., Suite 209
Moorestown, NJ 08057
(856) 608-9797