The golden rule of defense is that suspects who think that they may be implicated in a crime should keep their mouths tightly shut. Suspects all too frequently unwittingly reveal information that later can be used as evidence of guilt. The right to not incriminate oneself, guaranteed by the Fifth Amendment to the U.S. Constitution, is especially powerful in this situation, and a suspect should politely decline to answer questions, at least until consulting with an attorney.
Providing False Information About Someone Else's Involvement
When people lie to the police or otherwise intentionally assist a known criminal to avoid arrest, they may be charged as “accessories after the fact.” They can also be charged with obstruction of justice. Obviously, whether to furnish information leading to the arrest of a relative or close friend is a personal decision. However, a person who chooses not to do so should simply decline to answer an officer’s questions rather than lie. Rarely, if ever, would someone who simply declines to give information to a police officer qualify as an accessory after the fact.
Example: Cain comes running into his brother Abel’s house, and tells Abel that he, Cain, just robbed a market and that the police might be on his tail. A few minutes later, a police officer knocks on Abel’s door and asks him if Cain is in the house. Abel responds, “No, he left town permanently to go back east weeks ago.” Abel is subject to criminal prosecution as an accessory after the fact. By affirmatively misleading the police, he has aided Cain in avoiding arrest. To protect himself while not giving up his brother, Abel might have said, “I’m sorry, I can’t talk to you right now.” (Admittedly, the police might view such a response as a red flag that Cain is close at hand. Abel must rely on his own balancing of personal risk, private loyalty, and public duty.)
The Effect of Prior Contacts With the Police
People who think that they may be police targets (perhaps because they have a criminal record) should be especially careful about voluntarily talking to a police officer. Police officers sometimes distort people’s oral statements, either because the officers are lying or because they have heard only what they want to hear. By repeating in court only part of a person’s statement or changing a few words around, a police officer may make an innocent remark seem incriminating.
Example: A humorous example of police officer distortion occurred in the 1992 comedy film, My Cousin Vinny. In the film, a police officer questions a college student who has been arrested for killing a grocery store clerk. The stunned student, who at first thought that he had been arrested for shoplifting a can of tuna fish, repeats in a dazed, questioning voice, “I shot the clerk?” In court, however, the police officer makes it sound as if the student confessed to the murder by testifying that the student asserted, “I shot the clerk.” In real life, of course, police officer distortion is no laughing matter.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.