No one talks, everybody walks

I have not been posting much over the last couple weeks.  Besides the never ending cycle of work that comes with a criminal law practice, there always seems like a lot of "stuff" to do in May: birthdays, spring lawn care, graduations, etc.  I'm not the only one who's posting with less frequency lately,Houston Criminal Defense Lawyer Mark Bennett has also lamented his spring break from blogging; so I'll dedicate this post to his "Million Dollar" advice.

I have recently had two clients who were fortunate enough not to be charged by the police right away.  There was an investigation that was ongoing so it afforded them time to contact me for advice before charging decisions were made.  In both cases I gave them same advice: under no circumstances do you talk to the police.  The first thing you do is come in and talk to me or another criminal defense attorney. The recommendation to keep your mouth shut doesn't change after our meeting.  The less said the better, especially to the police. 

Normally people (defendants) don't have the luxury of time or the ability to talk to a criminal defense lawyer before they talk to the police.  They come into contact with the police at the same time or very shortly after the suspected criminal activity occurs.  If they are in a custodial situation (arrested or its functional equivalent) and being interrogated, they will receive the all important Miranda warning.

The typical Miranda warning goes something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.

Even the most ordinary, average, law abiding citizen could probably give you that approximate verse. There are few people, however, when faced with the stress of a police officer looking them in the eye and asking them questions, that will actually invoke their rights. 

The reasons people decide that they will talk to the police are varied. People are taught from a young age to obey police.  They think that if they don't talk they will "look guilty". Some people, frankly, are guilty but think they can "out-smart" the officer. Whatever the reason, they talk to the police. This is a bad, bad, bad idea.  The Miranda warning says it all. Anything you say WILL be used against you.  There is no maybe about it.  In all of my years of criminal law practice, if there is one thing that I have learned, it is that a defendant's statements to the police are the most powerful piece of evidence a prosecutor can have.  DNA is fine, but nothing really makes a jury perk up their ears as a defendant who "confessed".

Professor James Duane, has an online seminar that he taught entitled, In Praise of the Fifth Amendment...why I am proud to admit that I will NEVER talk to ANY police officer. There are many gems in the video by professor Duane, but the highlights as to why you NEVER, EVER, EVER want to talk to the police are as follows:

1. There is no possible way talking to the police can get out of being arrested.
2. Even if you are guilty as sin, if you talk to the police you are doing so without any benefit in return. Keeping your mouth shut may increase your chances of working out better plea deal later.  Don't be in a rush to convict yourself.
3. People can sometimes get carried away when talking to the police.  If you are mostly truthful, but exaggerate certain facts, it will be used to crucify you. Tell one lie and you are totally completely toast.
4. You run the risk of giving a false confession.  The Innocence Project has estimated that there incriminating statements were a factor in 25% of all DNA exonerations.  That means that in one out of four cases where a defendant was wrongfully convicted, their own words helped put them in prison or on death row.
5. Even completely truthful information will be used against you. "Sure I never liked the guy, but I would never kill him, and I didn't do this".  That could be 100% true, but all the jury hears is that you hated the dead guy....you have given the police your motive for murder.
6. If the interview is not recorded, the police can "forget" your answers, innocently misrepresent your statements, or lie.  What the jury hears and what you said can be totally different.
7. Even if the interview is recorded, unless you have 100% accurate and total recall of all the details of your life, you will make statements that are somehow inaccurate and they will be used against you.
8. Even if you are 100% truthful, have total recall, give a recorded statement, and don't say anything that would incriminate you...the police may have evidence that is mistaken, unreliable, or false.  The police may have a witness that is 100% wrong either through confusion or lies that tells a story that makes you look like a liar. You are now in worse position for having talked to the police.

Mark calls this concept Million Dollar advice. To Professor Duane, it is the easiest question a criminal defense attorney is ever asked by a client (The police are hear and want to talk to me, what should I do?).  Whatever label we give it, it can never sufficiently express how important it is to invoke the constitutional protections that we are afforded in a free society.  The best way I've found to get people to remember the idea is through humor.

No one talks....everybody walks.

Comments

[JR]

When I was a prosecutor, there were a lot of cases that I would not have filed but for the defendant's confession. It made a big difference in a lot of cases!