Russell Hebets May 5, 2015

Exercise Your Right To Remain Silent

Generally when the police contact an individual who is suspected of a crime, whether or not the subject of that investigation has committed a crime or not, the best advice for that subject is to remain silent. Here’s why. Anybody who is accused, charged or prosecuted with a crime has a Fifth Amendment right to remain silent. The Fifth Amendment of the United States Constitution guarantees that every person enjoys a right to not be a witness against themselves. This is important in almost all criminal investigations because the police will always want to interview the suspect. They want to do this because the suspect will often make statements that can be used against them in a subsequent prosecution.

Even a person who hasn’t done anything wrong is vulnerable here, because if he makes statements that are contrary to information the police already know, or inconsistent with other evidence they have already collected, these statements can be used, not necessarily to show that the person has committed a crime, but to show that the person is being dishonest or is withholding information.

The other thing to keep in mind is when the police are interviewing a suspect, chances are the police have already formed an opinion about whether or not that person is guilty or innocent before even contacting him. The police will be influenced by these beliefs, and any interrogation may be framed in a way to support that belief. This is why, out of an abundance of caution and safety, it is generally not advisable for a person under investigation of a crime to make any statements until they have had a chance to speak to a lawyer, or certainly until they have had a chance to review the police reports and discovery so that they know what they are getting into.

Can Police Lie?

Police are allowed to lie, deceive and trick people into making statements. They are allowed to intimidate the suspect to make statements. Statements to the police must be made voluntarily, however. As long as the police don’t obtain statements by force, threat, or coercion, statements will be presumed to have been voluntarily made. The police often try to pretend that they are on the subject’s side. It is common for a police officer to tell a suspect, “Hey, it will be better for you if you come clean and confess. Make it easy on yourself.” They do this not because they care about the suspect, but because it makes their job easier. They want the suspect to make incriminating statements because if the suspect confesses, their job is done for the most part. They don’t have to continue belaboring a criminal investigation by rounding up witnesses, obtaining DNA, downloading surveillance videos, etc. The police often use intimidation as a routine interrogation technique in order to make the suspect uncomfortable or to feel like they have no choice but to talk to the police. They also provide the suspect with a false sense of security that makes the suspect believe that if they talk, things will in fact get better for them, or that the charges will be lighter, or that the prosecutor will take it easy on them. These are rarely true. More often than not, everything the suspect says will be used against them.

Can The Police Cut a Deal with a Suspect?

The police usually do not have the ability to directly negotiate plea bargain deals or dismiss cases. These powers are reserved for the prosecuting attorney. While police agencies and prosecuting attorneys often work together in these investigations, they are separate offices with independent responsibilities. Police officers may say that they will put in a good word for the prosecutor if the suspect cooperates, but this promise is very subjective and makes no guarantees for the suspect.

Statements must also comply with Miranda. The police must read a Miranda advisement to a person who is 1) in custody and 2) under interrogation. Both of these factors must be present together to require the police to Mirandize someone. If either or both are lacking, the police do not need to read a person their rights before talking to them.

Do You Ever Have to Talk to the Police?

A person is never obligated to talk to the police. A person is required to provide identifying information to an officer who requests it, such as a government issued ID, and their name and date of birth. Other than that basic information, a person never, ever, ever has to provide the police with any information whatsoever. It doesn’t matter if they are a witness to the crime, or if they are the subject of the investigation themselves. A person can always say “I don’t want to speak to you,” or “I have an attorney, and I am not answering any questions without consulting him first.” It is always a good idea to assert this right politely and peacefully. The police are accustomed to people making statements and don’t like it when a person asserts the Fifth Amendment, again because it makes their job harder. The police may say, “I’m going to arrest you if you don’t talk to me.” They can do this. This is an example of intimidation that police use to put pressure on a person to talk. They may mean what they say, and it may mean that the suspect gets arrested. But remember that a person who is arrested and charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt. Just because they are arrested and charged does not mean that they are guilty and will be convicted. As odd as it may sound, it may be better in the long run for a person to get arrested and charged if it means keeping their mouth shut. The suspect doesn’t have all the information the police do, and because they have the burden of proof inevitably, you don’t want to help them prove their case by providing statements or a confession. Also, talking to the police doesn’t mean they won’t arrest you anyway! They are not bound by anything they promise. Even the most cooperative person in the word may still find themselves in cuffs after spilling the beans. Even if the police decide not to arrest, they can still charge by citation or summons. The best course of action is to politely refuse to answer questions or to ask for an attorney.