There are two responses, and only two responses (or slight variations on these responses), that a person under arrest should give when questioned by the police. First, a suspect could say “I am not going to say anything” or “I respectfully decline to say anything.” There is no reason to be impolite or to curse. A person does not have to drop an “F” bomb to the police before they realize they are wasting their time.
Ask to Talk to a Lawyer First
Second, a suspect could say “I want to talk to my lawyer before I say or do anything.” This demand for a lawyer must be unambiguous. The U.S. Supreme Court has ruled that a suspect’s demand for an attorney must be unambiguous and that right to an attorney can be waived without clearly demanding an attorney. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). So the suspect must be clear that they will not give a statement without first speaking to their attorney. If the suspect does not have an attorney, then he can say he wants to speak with his public defender or whoever is hired for him first.
Avoid Confession of Guilt and Lies
I am always amazed when people confess to crimes, particularly when it is previously convicted felons confessing to crimes. In some cases, the person confesses within minutes of being arrested. This makes the defense attorney’s job much harder and sometimes can make a valid defense worthless.
For example, suppose a person is arrested for murder but adamantly denies ever touching a gun on the night the murder happened. Then, after speaking with a defense attorney it appears that the case is custom made for a self defense strategy. To claim self defense, though, the defendant will have to change his story. He will have to admit to using the gun.
In other words, he will have to admit that he lied in his statement to the police. Put yourself in the jury's shoes. They don't know what happened. They were not there. They can't tell if the defendant is telling the truth or not. They only thing that they can know for sure is that the defendant is willing to lie when it serves his purposes.
Main Reasons Not to Make a Statement
Prosecutors Can Use All Your Statements
First, giving a statement is giving evidence against oneself. Even if the defendant denies any wrongdoing, a prosecutor can still use the statement. Anything the defendant says can be used against him if it conflicts with what he says at trial. It can also be used if it conflicts with other people’s accounts of what happened. So even if the defendant keeps his story consistent, his credibility can still be questioned when his story conflicts with other witnesses’ testimony.
You Get Nothing for Talking
Second, the defendant will get nothing in return for giving the statement. He will not be released from jail for cooperating. He will not get more favorable treatment from either the police or the prosecutor for giving a statement. The judge will not give him a more lenient sentence for confessing. (In federal court there is an advantage to accepting responsibility for an offense but that is long after being questioned by the police.) So, there is no benefit to confessing. If the defendant wants to clear their conscious, then they should do so with their attorney.
A Statement May Ruin a Good Defense
Third, giving a statement locks in the defense theory. As pointed out in the hypothetical, the denial of touching a gun used in a murder case may make a self defense theory impossible. Perhaps the defendant acted in self defense. Maybe the defendant went overboard and used excessive force. This could make the lesser charge of second degree murder charge a possibility. The statement about not touching the gun, however, can lock in the defense and make a self defense strategy impossible.
Interrogations May Lead to a Confession
Fourth, a defendant may unintentionally confess. Some detectives are very skilled interrogators. They really know what they doing. I have seen a suspect initially denying any wrong doing. By the end of the interview, he was saying that he would apologize to the victim if she were present. He did not mean to confess. He just felt sorry for her and what she had been through but not because he caused any of her problems. Once he said that, though, it did not matter. He was caught and later he was forced to plead guilty.
Lies in a Statement Can Lead to an Obstruction of Justice Charge
Fifth, if the police and the prosecutor believe that the defendant lied in his statement to prevent his prosecution, then the prosecutor could charge him with obstructing justice. The elements of this charge are that a person provides false information to prevent their prosecution or the prosecution of another person.
The most common example of this is when a person lies to the police about who they are because they fear that there is an outstanding bench warrant for their arrest. Any false information given to prevent a person’s prosecution, however, could lead to this charge. A defendant may compound his problem by trying to talk his way out of being arrested. Instead of talking his way out of a charge, he may talk himself into an additional felony charge of obstructing justice.
I have a friend who has contacted me several times over the years about his family members or friends who have been arrested. His question is always the same: What should I tell the person under arrest to do? My answer is always the same: Tell them, “DO NOT GIVE A STATEMENT.”
For more information, see Your Rights When Dealing with the Police.