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.

A BOSTON CRIMINAL LAWYER DISCUSSES WHETHER YOU SHOULD TALK TO POLICE DURING A CRIMINAL INVESTIGATION WITHOUT AN ATTORNEY PT.2

On Friday, we began discussing whether suspects, or potential suspects, should talk with the police who are conducting a criminal investigation when the officers come to interview them. We focused on the occasion in which the interviewee does not believe that he or she has anything to hide.

As naïve as that may seem.

Attorney Sam’s Take On Volunteering Admissions Without An Attorney Present

What about when you believe that you either do, or may, have something to hide?

Perhaps you did something that was close to the line. It could be that you lost your temper and did something that you knew was illegal…because the recipient “deserved it”. Maybe you simply realize that you’re not a saint and could have made a mistake.

You are now a nervous wreck because officers have shown up on your doorstep and wish to talk to you about… something. In fact, often, the opening line is to ask you if you know what the offices of there to talk about.

How’s that for putting you on the defensive right away?

As the officers will be more than happy to point out, they are there to ask questions, not answer them. In fact, it would not matter if they were there to answer questions because, by law, they are allowed to lie.

A reminder…if you lie to them you risk felony charges.

Clearly, it is not the wisest choice to answer the question of why the offices are there by saying something like, “Well, it could be that $35,000 I embezzled from the company…” or “You found out that I was driving while drunk last night?”

Many people make a mistake in believing that they are good on the a feet and so can smooth talk their way around inculpating themselves during the conversation. In most cases, they are wrong. Remember, the officers know why they are there. You do not. Or, if you do, you know that you do not want to be making statements about it.

“But, Sam, what about when they tell you that the best way to help yourself is to come clean?”

Well, I suppose it does help you if you are hoping to become an involuntary guest of the Commonwealth or federal government. In most cases, the ways in which “coming clean” is going to help you will still be available after you get an experienced lawyer to advise you.

The warning that you have seen on television and in the movies that “anything you say can and will be used against you in court” is not simply boilerplate rhetoric. It is true. It is true in many different ways.

If you make any statements, or even if you don’t, the officers allowed to opine as to your mental state upon being confronted by them. Do not try to act calm because you will only act more guilty. Everybody understands that being confronted by investigating officers for reasons unknown tends to make folks nervous. Trying to play ultra-relaxed during their sudden intrusion into your life is only going to seem dishonest. That, too, will be reported to prosecutors, judges and juries. Further, if you say anything, other than asking for a lawyer or saying you do not want to talk to them, you will be giving the prosecution ammunition. Ammunition against yourself.

I remind you once again that you do not know why the officers are there, or, if you do, how much they know. Therefore, you do not know what can incriminate you. Simply admitting that you went to a store could incriminate you even though it is not a crime to go to the store. If you did go to the store, you may be placing yourself at the scene of a crime. If you did not go to the store you are lying and that can be used against you. “After all”, the Commonwealth will argue, “why would an innocent person lie about something like that?”

The obvious answer that everybody lies sometimes for a variety of reasons does not play very well to a jury.

I quote the late Nancy Reagan when telling you what the safest response to the officers is “Just say “no”. “No”, in this case means saying you want to talk to a lawyer first.

“What is the difference between “No” and “I want to talk to a lawyer?”

The latter indicates that you might talk to the officers…after you talk to a lawyer. Obviously, the fact that the officers are there to speak to you suggests that somebody thinks you did something criminal. In my book, that is reason enough to want a lawyer’s help, if only to get closer to an equal playing field with the officers who are well aware of the status of their investigation. You and your lawyer may well decide to let you speak to the officers so, for the moment, you are holding that hope out to them.

By choosing not to talk with the officers, you might feel that you are broadcasting your guilt. This is not necessarily so. In this day and age, it is not unusual for people to realize that, if they are being suspected in connection with a crime, they should get a lawyer. Further, very likely, the question of whether or not you are guilty of something is a ship that has already sailed. That is why the officers are showing up at your doorstep or telephone. Very likely, they believe that they have all the facts that are necessary to charge you. The only reason to talk to you now is to get statements that can be used against you.

Finally, it does not really matter if the police believe you are guilty. The time that truly matters is going to be when dealing with prosecutors and judges and juries. Granted, if you have been charged, the prosecutor already believes that you are guilty. Proving it, however, is a different story. By making various statements, you make their job easier. However, if you do not make statements, or ask for a lawyer, this cannot be used against you at trial. Further, it cannot even be mentioned by the prosecution.

All you have done is exercised your Constitutional right. While I realize that the Constitution, and its amendments, where written a long time ago, there is still a reason for them today. In fact, I would say that there may be even more reason for the Fifth Amendment regarding self-incrimination than there ever has been before. This is because police officers routinely mislead and out-right lie during the course of their investigation. That is called “good police work.”

We will not even deal the question of lying on the stand, although that is not considered “good police work”. At least by the judge and prosecuting attorney.
And speaking of the prosecuting attorney…where does he or she stand in terms of truth telling?

We will hit that tomorrow

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