Criminal Arrests and Interrogations FAQ

You’ve never committed a crime in your life but the police, investigating some burglaries in your neighborhood, detain you while on your way home from a club late one night. You want to explain to the police what you were doing and clear this up. And, they say they want to talk to you. What’s the downside to talking to the cops? In general, the downside is potentially huge and there is no upside for you.

Arrest is “Custody”

A person under arrest is in the custody of police. As a general rule, police must advise an individual in custody of the Miranda rights (including the right to remain silent and the right to speak to an attorney) before interrogating. A prosecutor cannot use the silence of a person during an in-custody interview as evidence of guilt at trial. (But see Miranda and Post-Arrest Silence.)

Fifth Amendment rights

The Miranda warning includes a reminder that a suspect has a right to remain silent. This right is found in the Fifth Amendment to the U.S. Constitution, which states that every person has a right not to incriminate him- or herself. But, if a person chooses to speak, he may give up that right.

Every statement you make to police is evidence that can be used against you. You are essentially doing the work for the police and prosecutor to help them convict you! There is a reason every person arrested has a right to remain silent and to have an attorney present during questioning: to even the “playing field.” A person who does not exercise these rights is standing alone, completely out-gunned, against a prosecutor with massive resources by comparison.

Silence in pre-custody interview may be used

Under certain circumstances, a defendant’s silence during police questioning may be used against him at trial. Where the police question a suspect before placing him under arrest and before reading him his Miranda rights, his silence in response to some questions might be admissible evidence at trial. (For much more on this issue, including the way the law may differ in some places, see Invoking Your Right to Remain Silent.)

Anything You Say Can Be Used Against You

People under arrest often think that if they just deny everything, they will be helping their case. In fact, if the prosecution shows that just one part of what was denied was actually true, the defendant’s credibility is damaged and the defendant’s attorney will have a much harder time defending him.

At times, police will want to question a person because they don’t believe they have enough evidence to even arrest him and they hope he will inadvertently give them enough information to support a charge.

New charges

By speaking to police, a suspect may also inadvertently give them grounds to press new charges against him. For example, a suspect who lies during an interrogation might be opened to a charge of obstruction of justice. Or a suspect who blurts out the names of other people involved in a crime might be charged with conspiracy. In some cases, a person’s statement to police can lead to charges the cops had not previously thought of pressing even when the original charges that led to the arrest are dropped!

Talk to a Lawyer, Not the Police

Even an honest statement to the police by someone who's innocent can be a problem. For one thing, the statement might contain inadvertent inaccuracies or inconsistencies that the prosecution will later pounce upon.

A person under arrest almost never benefits by talking to the police. Instead, a person in that situation should assert the right to counsel, tell the police he wants to speak to an attorney, and then find a lawyer. An experienced criminal defense attorney will help the person deal with the police, the charges, and any trial.

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