Never Ever Talk to the Police, even if you are completely innocent.
This blog post is inspired by the Youtube video I watched a few weeks ago. I don’t know the man’s name but
he is a law professor and a former criminal defense attorney. This video really opened up my eyes. This is a
much-watch video for every citizen. The video appears at the bottom of this article.
The simple rule is that you don’t have to talk to the police under any circumstances. We can thank the U.S.
Constitution for this simple rule. The Fifth Amendment to the U.S. Constitution says: “No person shall be
compelled in a criminal case to be a witness against himself.” This amendment gets a bad rap because most
people think that you have something to hide or you are guilty if you refuse to talk to the police.
Most attorneys during their career will be asked this simple questions: The police are here at my house or
work and have a few questions. What should I do? Justice Robert Jackson, a prosecutor, IRS counsel,
solicitor general, Attorney General of the U.S. and Chief prosecutor at the Nuremberg Trials said:
“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under
any circumstance.” Watts v. Indiana 338 U.S. 49, 59 (1949).
The problem is that people want to talk to the police because they think they can explain things and possibly
get the police to drop the case or just simply leave them alone. But that never happens. In my experience, I
have never had a case where my client talked to the police and was able to convince the police not to arrest
or file charges against him.
For example an attorney got convicted recently of criminal assault because he talked to the police. The
alleged victim was another attorney who said that the attorney had assaulted her in the hallway of the
courthouse. There were no other witnesses. The woman said that the attorney grabbed her by the throat
during an argument. The attorney denied it ever happened. At trial it was his words against hers. he said he
did not touch her. But, the attorney had talked to a police officer when they approached him and asked him if
he was willing to answer some questions. he said “sure why not”. The questioning by the police was not
recorded. At trial it was no longer his words against the woman’s but his against the woman’s and the officer
who said that when he questioned the attorney, he said that he did put his hands on the other woman’s throat
but just as a joke. The attorney then had to take the stand and say that that statement was not true and that
he never said that to the police. The jury believed the police and the attorney was convicted.
The heart of the problem as Supreme Court Justice Breyer in 1998 stated is
“the complexity of modern federal criminal law, codified in several thousand sections of the United States
Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a
possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of
statements might later appear (to a prosecutor) to be relevant to some such investigation”. Rubin v. United
States.
Even the federal government has lost count of how many crimes there are in the federal codes in 27,000
pages and regulations. For example it is a federal offense “for any person…to import, export, transport, sell,
receive, acquire or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of
any law, treaty, or regulation of the Untied Staes or in violation of any indian tribal law or any state or foreign
law. 18 U.S.C. 3370. People have been convicted of this statute because they brought back a Boney Fish
from Honduras because they didn’t know that Honduran law prohibits the possession of this fish.
Top Reasons Not to Talk to the Police
1. There is no way it can help. You can’t talk your way out of getting arrested. You can’t give the police any
information that will help you at trial. See Federal Rules of Evidence section 801(d)(2)(A). What you tell
the police, even if it is exculpatory (tends to show that you are not guilty), cannot be used at trial in your
defense. Everything you tell the police can be used “against” you by the prosecution, but it cannot be
used “for” you in your defense.
2. If you are guilty, and even if you are innocent, you may admit your guilt with no benefit in return. (plea
bargain). In federal court, 86% of criminal defendants plead guilty before trial. If you are guilty, there is
plenty of time to confess. You should wait and see if an arrangement can be made during plea
negotiations for a lighter sentence, probation, or some other arrangement in return for a confession. Even
if the you admit to things the police already know, that can be used against you later, even if the police
officer retires, moves, dies, etc. Why help them? More than 25% of cases involving DNA, the defendant
confessed, but were later shown not to have been involved in the crime because of DNA testing.
3. Even if you are truly innocent and deny your guilt and mostly tell the truth during the police interview, you
can easily get carried away and tell one little lie or make some little mistake that will hang you.
4. Even if you are innocent and tell only the truth, you will always give the police some information that can
be used to help convict you. “I didn’t kill the guy, I don’t own a gun, ya its true I don’t like the guy, but I
wouldn’t kill him.” The “I don’t like the guy” will be played over and over again at trial to help convict you.
Ohio v. Reiner 532 U.S. 17, 20 (2001) said “one of the 5th Amendments basic functions is to protect
the innocent men who otherwise might be ensnared by ambitious circumstances. Truthful responses
of an innocent witness, as well as those of a wrongdoer, may provide the government with
incriminating evidence from the speakers’ own mouth.”
Ullman v. United States 350 U.S. 422, 426 (1956) “too many, even those who should be better advised,
view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are
either guilty of crime or commit perjury claiming the privilege.”
5. Even if you are innocent and only tell the truth and do not tell the police anything incriminating there is still
grave chance that your answers can be used to crucify you if the police don’t recall your testimony with
100 percent accuracy.
6. Even if you are innocent and only tell the truth and do not tell the police anything incriminating and your
statement is videotaped, your answers can be used to crucify you if the police don’t recall the questions
with 100% accuracy. For example, an Officer tells the suspect that they are investigating a shooting while
the suspect is not being recorded. Then at the station, they record and ask the suspect if he knows
anything about the murder and the suspect says I don’t know anything about the shooting. I have never
used a gun in my life. Officer takes the stand and tells the jury “I never asked the suspect about a
shooting. I asked him about a murder. He brought up the shooting (but in an unrecorded interview).
7. Even if you are completely innocent and only tell the truth and do not tell the police anything incriminating
and the entire interview is videotaped, your answers can still be used to crucify you if the police have any
evidence, even mistaken or unreliable evidence, which tends to show any part of your statement is false
even if in fact it was true. For example, you think you have nothing to hide and talk to the police because
you think you have a perfect alibi and you tell the police “I don’t know who robbed the guy. It wasn’t me. I
have a good alibi. I was 4 hours away visiting my mom’. Your mom’s testimony here is useless because
she is biased and will undoubtedly testify in your favor. If for example you don’t have any evidence to
show that you were 4 hours away, the police may have an unreliable witness who says that she saw you
close to the scene of the robbery. In this situation, the police are very likely to get a conviction.
The moral of the story is that you can never talk your way out of getting arrested if the police want to
interview you. Remember that the Fifth Amendment to the U.S. Constitution was written not to protect the
guilty, but to protect the innocent. The police can’t force you to talk to them so why talk to them? You have
no idea what evidence or information the police have. Wait and tell your story in a trial before a jury of your
peers. There is no need to rush and talk to the police and admit or deny anything.