Criminal Arrests and Interrogations FAQ

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Should an arrestee ever give a statement to the police?

You’ve never committed a crime in your life but the police, investigating some burglaries in your neighborhood, detained 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? 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 first advise an individual in custody of their Miranda rights (the right to remain silent and the right to speak to an attorney). A prosecutor cannot use the silence of a person during an in-custody interview as evidence of guilt at trial.

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 may be used at trial.

If a person is in custody, however, this exception to the rule that silence cannot be used against a defendant would not apply. And, because this case involved a suspect who voluntarily answered some questions, a person who maintains silence throughout police questioning likely could still prevent the prosecution from using that silence at trial.

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 can later be charged with obstruction of justice. Or, a suspect who blurts out the names of other people involved in a crime may be charged with conspiracy, too. 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!

“Helpful” statements won’t help

How can an honest statement to the police that actually supports your defense be a problem? For one thing, that statement likely will not be admitted at trial. This is because your out-of-court statement is hearsay and the judge will rule that it is inadmissible. And, if the statement turns out not to be so supportive, it’s still hearsay but the prosecution can ask the judge to admit it under an exception to the hearsay rule for statements made against the defendant’s interest. The prosecution largely controls what information from the police interview is introduced at trial. So, it is highly unlikely that even a truly supportive statement will help you at trial.

Talk to a Lawyer, Not the Police

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

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