Colin McCallin Dec. 20, 2010

“Should I have given my side of the story to the police?” This is one of the most common questions I am asked as a criminal defense attorney. Before I answer, a little background information is required to fully understand why this can be a complicated question.

For starters, there is no legal requirement that you talk to a police officer if you are detained. In other words, the police cannot make you talk. If requested by an officer, you must provide their identifying information (i.e. name, driver’s license, date of birth), but that is it. This principal comes from a person’s right to remain silent guaranteed by the Fifth Amendment of the United States Constitution.

Assertion of this right is easier said than done, however. For example, let’s say you get pulled over on a cold dark night after having one cocktail with a friend. The police cruiser blares its sirens and flashes its dizzying strobe lights until you stop, and a large, intimidating officer with a foot long Mag-lite shines it in your eyes and asks how much you had to drink that night. You have been asked a question by a police officer that may incriminate you. What do you do?

Option A: Waive Fifth Amendment and Talk. “I had two beers, officer.” Congratulations. You’ve just given the cop probable cause to arrest you. The cop hauls you out of the car, puts you through roadside maneuvers that he subjectively believes you have failed, and arrests you for DUI, but notes to nobody in particular that you were cooperative and polite.

Option B: Assert Fifth Amendment and Keep Quiet. “Officer, I’d rather not make a statement without talking to a lawyer.” The officer apologizes for inconveniencing you, gets in his car and leaves, right? Wrong! Cops hate this response for a few different reasons, even though it is a valid assertion of your rights. First of all, they are trained to use intimidation as a tool in order to get suspects to confess. The bright strobe lights, Mag lite, night stick and formal speech are all tools employed for a specific purpose- to make you scared, uneasy, and thus, submissive and talkative. The police are used to having suspects talk about their suspected behavior, and by extension, making suspects incriminate themselves. When a suspect asserts their Constitutional right to remain silent, it shows the officer that the suspect is not influenced by this form of intimidation and is exerting control over the investigation. Some cops may take the Fifth Amendment assertion as a refusal to cooperate. It also makes them have to work harder. The officer is faced with a decision: Do I have enough evidence to make an arrest without a statement by the accused, or is more investigation required? More often than not, the arrest will still be made, so congratulations: you’re in cuffs again.

Thus, we have our dilemma. Is it better to talk to the cops honestly and cooperatively in the hopes that we can talk our way out of the situation, or should we say nothing and risk agitating the officer and suggesting to him that we have something to hide?

From a legal perspective, option B is the way to go despite its flaws for several reasons. People should understand one important general rule of thumb that applies in most cases, whether it be a traffic stop or a murder case: by the time the police are asking you questions about what you did or didn’t do, they have already made their decision to arrest you or not. By getting you to talk, they are trying to bolster their case. They may do this by use of intimidation tactics discussed above, or they may play more of a “good cop” role in order to get you to open up. Bottom line- anything you say can and will be used against you. In our example, option A provides damaging evidence for the police officer to use. Option B does not. Even if you have done nothing wrong, the less you say the better. True, you may get arrested. But you have also denied the officer possibly crucial evidence he would like to use against you. There may come a time where it is appropriate to make a statement, but that should be done only after the suspect and his/her attorney have reviewed all of the evidence and discussed this option together. The key to remember when exercising option B is to be as polite and as respectful as possible.

I know what you might be saying- “If I am cooperative with the officer and answer all of his questions, maybe he will let me off with a warning.” You are absolutely right about this. The problem is that you never know the officer’s intentions. It is much more advisable to be quiet rather than give the officer more evidence he can use against you. Further, the odds of the police officer letting you off-even if you believe you’re innocent- are statistically less likely than you being cited or arrested. In the long run, the less you say, the safer you are.