Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“SHOULD I TALK TO THE POLICE WITHOUT AN ATTORNEY?” PART 1 of 2

Let’s face it. It is scary.

Suddenly you are confronted by law enforcement and the police are asking you questions in tones which suggest that they suspect you of doing something illegal.

You are shaky and they are calm. They are in control.

And they are telling you that the best way to help yourself is to talk to them. Now. Without an attorney.

You remember that, at some point, you read that some defense attorney warning people not to make statements to the police without an attorney present. So, you ask if you can just have a few minutes to call your lawyer.

One of the officers chuckles and the other one shrugs his shoulders and says, “okay, if you feel you need an attorney. That’s up to you. It doesn’t look that good though. But that is certainly your right.”

The officers seem to be disappointed. This frightens you more.

What should you do?

Attorney Sam’s Take On Making Statements During A Criminal Investigation

First, I have to tell you the obligatory bad news. This is not one size fits all. Each case is different. My statements in this blog, however, reflect a great deal of experience as to how things generally go in the criminal justice system. Therefore, I tell you right now, do not simply rely upon this posting or any other blanket statements that advise you to do one thing or another in all cases. If at all possible, contact an experienced criminal defense lawyer and review with him or her the details of your situation.

However, the reason for paying attention to this posting is to give you information going into the situation. In other words, to try to prepare you for it. After all, if you are simply driving to the store , get pulled over by the state police, suddenly are surrounded by uniformed officers pointing their guns at you and screaming that you get out of the car, it is not going to be a wise move to simply sit there, pick up your cell phone and call your lawyer.

Especially since the picking up of your cell phone, in itself, might get you killed.

In situations like that, the best thing to do is exactly what the police tell you to do. Most people in such a circumstance already understand that they suspected of something and are in trouble.

What about the situations when investigating officers quite calmly contact you and tell you they want to talk to you?

One particular detail which effects what you should do when confronted by a police investigation is whether or not you believe that you have something to hide.

“Sam, have you ever met anyone who really has nothing to hide?”

Good point. However, I am referring to a situation where you have some idea of a crime that you have committed which may have brought about this confrontation. Maybe, over the past few months, you’ve been skimming some money off the top at work, ie embezzlement. Perhaps, yesterday, you finally had had it with your neighbor and, after an altercation, left him hanging around. Literally. Could be that you just happen to have 1 or 52 bags of cocaine lying around in your trunk.

These would be examples of having something to hide. I will get to that specific situation in part two of this posting on Monday.

In the meantime, what do you do if you believe you have nothing to hide?

There are two reasons why I phrase it like that. First of all, as mentioned above, everybody has something or other that they don’t want other people to know. Second, and perhaps more importantly, is that you may not know that you have something to hide because you don’t even know what the investigation is about.

“Won’t the officers tell me?”

Maybe. Maybe they will simply say, “you know”. They might tell you what the investigation is about and be telling you the truth or they may be lying.

As this blog has reflected many times, investigating officers, by law, are allowed to lie to people during the course of their investigation. This is called “good police work”. You, on the other hand, do not have that option. If you lie to the officers, it is a felony.

You also have to understand a sad truth that many people like to ignore. The police very well may have already made up their minds what the truth of the matter is. Often, offices do not question the suspect until they feel they already know what has transpired and are simply looking for icing on the criminal justice cake. That cake, of course, will be your prosecution.

If you really have no idea what the criminal investigation is about, then you cannot really know what kind of statements might tend to incriminate you. For example, let’s say that last night, the local 711 was robbed. For some reason, the police believe you had something to do with the robbery. You didn’t. However, you did go to the 711 last night at the time they believe the robbery took place. In fact, you found the clerk quite rude and had some words with him before you paid and left.

The officer asks you where you were at that time without telling you anything more. You do not even know that the robbery took place a few minutes after you left. You tell him that you were at the 711 and got quite angry with the clerk because you thought he was cheating you. By the way, it turns out that whoever robbed the 711 beat the clerk to the figurative pulp.

You have now told the officer that you were at the scene of the crime at what they believe was the time of the crime and had a motive to beat the clerk up.

Crime solved, right? Sounds like an upcoming arrest to me. Let’s hope that the clerk does not die from his injuries and that you do not end up facing a homicide charge.

“But Sam, they don’t have any evidence against me.”

Oh? Maybe the clerk, upon waking up from his beating, remembers the argument with you and thinks that you did it. Maybe the clerk did not even get a look at his attacker.

“But then, at the very worst, it is his word against mine.”

That is true and criminal convictions are gained by such evidence every day. Further, even if the clerk dies or cannot identify you, there is a case against you. Your own words help the prosecution make their case.

“But the police can see what type of a guy I am. I would never do that.”

But the police do not really know you. Further, they need to close this case. Finally, even before talking to you the officers probably have decided that you are the suspect.

You also have to remember that the police, if they let you go may well be criticized. They will never be criticized for taking you went to custody. As I have often told you, covering one’s law enforcement behind tends to run the system more often than not.

“So you are saying that the officers may not even tell me what I am suspected of, may lie if they do tell me what they suspect and that if I tell them something that turns out not to be true I am opening myself up for a felony charge?”

That’s about the size of it.

“So then, how can I safely talk to them without knowing when I am tripping a landmine?”

Good point. Generally, you can’t.

This is why the general advice is to politely tell the officers that you want to speak to a lawyer before you speak to them or have the lawyer with you when you do speak to them.

Thereafter, if they are contacted by your lawyer and told that you are not going to be making any statements, that cannot be used as evidence against you. Nor can asking for a lawyer. That is your Constitutional right.

What I generally do in such circumstances is explain to the officers that it is my fault you are not going to meet with them. You have nothing to hide and would be happy to tell them things that they do not even want to know. But, I, the big bad criminal defense lawyer, will not let you talk to them.

“That sounds like a game.”

That’s right. And, unfortunately, that is what it has become. However, the prize of the game is you.

Now, there are instances where cooperation with the police is not only the morally right thing to do but, also, the legally safe thing to do. The problem is that, because of the rules of this game, you are playing blindly. Further, it is not an even playing field. The days of simply looking for the truth and keeping an open mind are, for the most part, gone.

This is why you need to consult an attorney to guide you through this danger zone. It is the safest way to travel through it. If you make a misstep in this zone, it could mean a huge negative change in your life and the loss of your liberty.

On Monday, I will continue this topic and deal with the situation in which you do feel that you have something to hide. In the meantime, have a great, safe and law-abiding weekend!

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