In criminal defense “nothing” is often a good thing to do and say

When accused, investigated, suspected or arrested for an alleged crime, many people want to talk their way out of trouble.

This is understandable for recent immigrants or visitors from countries where due process does not exist, where police are routinely brutal and can torture with impunity, where not declaiming your innocence constitutes a confession, where police arrogate the right to search every nook and cranny of your house, files, lockboxes, cars and bodily orifices without review by a judge or articulable cause to believe that crime scene evidence exists in those nooks.

I cannot blame someone accustomed for the last 30 years to Egyptian police, Belarussian police, Iranian police, Syrian police, Nigerian police, Russian police, Chinese police or Vietnamese police from giving up a big, friendly, enthusiastic “brain dump” to anyone with a badge. Egyptian police are infamous torturers, so much so that one trick of the CIA was allegedly to get an Arabic-speaker to confess by placing someone with an Egyptian accent merely speaking within earshot down a hall or behind a wall. Who would want to go through that? So I get it when foreigners without lawful status, foreign visitors, lawful permanent residents and even new citizens of the United States want to brain-dump their every word, thought and recollection into the steno pad, notebook, video camera, audiotape or whatever device of the friendly neighborhood police.

A 30 year-old who grew up watching 20 years of Law and Order on NBC (does NBC have any shows other than Law and Order?) in English as a native English speaker in this country has no excuse. That person is not only a fool, but (excuse me) a damned fool.

Nothing good shall come from chatting with the police if you are or even remotely may be a suspect, a defendant, an arrest, a “person of interest.” Unless you are prepared outright to plead guilty to any charge the police can remotely place upon you, and enjoy jail, you should…..

[drumroll]

….exercise your right not to incriminate yourself. Have you heard of this right?

You should not “get smart” with the officer. You should not show disrespect to the police. You should NOT threaten to sue the police (it may be worth it to sue the police, but NOT to threaten a suit.) You should not resist arrest or resist police mistreatment physically unless you conclude that you need to do so to protect yourself from SERIOUS avoidable harm. You should not refer to them, or address them, as “cops”; they are “officers/troopers/agents/patrolmen.” You should not make it harder for the police to get you out of the police precinct and ideally out of their entire scope of interest, i.e. back to your home. But you have no duty (in this country) to assist the police in building their case, no duty to answer questions, no duty to incriminate yourself whatsoever or help the government wreck your life. So don’t. Just don’t. Be polite, quiet and do not cooperate other than to identify yourself. Give NO statement until you talk with an attorney – whether it’s my office or any of the other tens of thousands of private attorneys in this state and country.

Even if you want to plead guilty, you should do so only through your legal counsel. No bona fide plea deal will sour merely because you hire an attorney; the presence of your attorney can only strengthen your defense, both in terms of organizing and streamlining your presentation and in terms of showing negotiation strength.

As a practicing criminal defense attorney, I cannot tell you how many people come to talk to me AFTER they have given a full “brain dump” to the police – often admitting unwittingly to a crime in the process or at least to being present when a crime took place. My fellow Americans do not seem to realize that police are TRAINED to put cases together. It’s as if because American arrestees don’t hear the dramatic lead-in music from Homicide: Life on the Streets or Law and Order (you know, the “bwah-bwah”), they don’t realize that the police are playing chess, not tic-tac-toe. Police aren’t superhuman but they are skilled and do train on basic interrogation techniques.

If police want to place you at, say, a pot bong party, they don’t ask you “were you at the pot party” very often. Sometimes they will ask that question, but that question is likely to get you to “lawyer up” – the only game-winning move you have. They will ask you “can you help us find the dude who was vandalizing cars down the street?” Or “Jane says you were there but that you did NOT touch the pot. That’s true, right?” when Jane hasn’t been interviewed yet. Or “did you know that a dog got poisoned with pot smoke?” and then 10 minutes later “Why did you guys poison the dog?” “We didn’t know about any dog” secures what they need. Or “if you provide a SHORT apology letter we can take it to the State’s Attorney.” Or “if you provide us an alibi now we may try to confirm it but not if you ask us later” (as if police, not courts, judge cases.) Or “if you are polite and don’t take too much of our time, we will let you request leniency in writing” (again, as if they dare replace judges, juries and courts in fact-finding and dispostions of cases.)

In short, talking with the police is a mistake. “Nothing” is a good thing to say and do in a great many criminal cases, especially regarding communications with the police. At a minimum, it’s best to consult in detail with counsel, ideally outside of police custody, before telling the police anything. Sometimes I tell my clients to staple their tongue to the desk to avoid saying anything; this sounds extreme or even “insane” but a puncture wound to one’s tongue will heal much more quickly than a puncture wound to a defense case.

“Nothing” is a very brillant thing to say to the police much of the time.

Posted by Bruce Godfrey

Leave a Reply