Today I will continue my series on relevant legal topics with a common question that arises regardless of the details of any case; Should I speak to the Police and what should I say?
This is a very difficult question to answer and it has plenty of grey area attached to it. The best answer that can be given is a MAYBE while leaning towards NO more often than not. I will detail some of the reasoning, both logical and legal, behind that “answer”.
NOTE: This blog is not discouraging you to speak to the police if there is an emergency or if someone is seriously injured. This blog is merely stating some of the 5th Amendment issues that arise when you do speak to the Police. Also, this is not an exhaustive list. It is just some common situations that arise.
Situation #1: Detained by Police
Often times, if the police are talking to you it is because they suspect you have committed a crime. If they have detained you it is usually due to the fact that they have enough evidence to arrest you and simply want to know if you will admit it and strengthen their case. If they have evidence to arrest you for a crime, they will. If they do not, they will not. Nothing you say will sway that fact either way.
Talking to them or not in this instance will not make a positive difference for you. In my experience, I have never seen or heard of a scenario in which someone talked their way out of an arrest. It just does not happen. If you are in this undesirable position, I suggest you use your 5th Amendment Right to Remain Silent and fully cooperate with the Officer. Politely let the Officer you know that you have or would like to have an Attorney. Remember, remaining silent DOES NOT mean you are not being cooperative. You are simply utilizing an absolute right you have according to the Bill of Rights in the U.S. Constitution.
Situation #2: You truly are innocent
This situation is very common. A person is completely innocent of any wrongdoing and is vehemently asserting this to the officer. This person goes overboard due to emotion and denies or embellishes some insignificant fact of his/her story. If the officer has any evidence of this insignificant fact differing from your story it can completely ruin your credibility in court.
That small or insignificant fact, that is inconsistent in your story, is now used to impeach your credibility in court and may make you look culpable of a crime you DID NOT commit. Remember, you will never be able finalize the case with your statement. You will just further complicate things for yourself. Remain silent in this situation.
Finally, be mindful that the police do not have authority to make deals or grant leniency when you are speaking with them. It is true that an officer will take into account your cooperation and other facts pertaining to the case when they discuss it with the Prosecuting Attorney BUT they cannot alone grant any leniency in exchange for your statement.
Situation #3: Memory issues
This is the sibling of Situation #2. You are a truly innocent and honest person and you make a statement to the police prior to a trial or hearing. Months later at trial, you testify again pertaining to the same event. The chances are extremely high that, even though you are telling the truth, some little details in your statement are going to change. None of us are robots and this is human nature. However, you have now opened the proverbial door for a good cross examining attorney to relentlessly question these inconsistencies in an effort to make you look like a liar lacking credibility.
Anytime you are detained by Police, regardless of guilt or innocence, it seldom behooves you to speak or make a statement. Utilize your 5th Amendment right to remain silent, be cooperative with the police otherwise, and request to speak to your attorney. There is no need to potentially implicate yourself any further.
As always, contact my office pertaining to any legal issues or concerns.