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Should I talk to the Police?

Posted by E. W. Childers | Sep 18, 2019 | 0 Comments

No. Identify yourself, provide your license and insurance, but otherwise decline to answer questions.

Why Not Talk to the Police?

It is perfectly possible to implicate yourself in a crime you didn't commit. Something as simple as admitting that you were anywhere near a crime scene (possibly when you don't even know that a crime was committed) can cause you a lot of trouble even if you are later able to extricate yourself. There are plenty of other such facts: do you own a firearm, where were you, have you been drinking, where were you going? The list of things that you can say that can be used to incriminate yourself is endless. And the fact is, you are under no obligation to give any information of any variety that would tend to implicate you in a crime. You have the absolute right to remain silent and to demand a lawyer be present during any questioning, but be aware that you have to say it out loud, "I'm not answering any questions, I want a lawyer." Repeat it as many times as it takes to end the questioning.

Another issue is that if you intentionally or accidentally give inaccurate information to the police they're going to verify it, then, when it turns out to be inaccurate, you will be accused of lying which makes anything you say afterword forever subject to impeachment (a court argument that your testimony is untruthful) by skillful prosecutors even if you give perfectly accurate verifiable information afterword. So, for example, the police ask where you came from. "I came from Joe's place (or wherever)." They call Joe and Joe says, "I haven't seen him in a couple of days..." Maybe you were nervous and meant James. Doesn't matter, now you're a liar instead of someone who stood on his Constitutional right to remain silent. An attorney can help you to transmit information in an accurate way or (more likely) just advise you not to answer at all.

If you don't believe me, listen to a United States Supreme Court Justice. Here's what Justice Jackson said about this:

To subject one without counsel to questioning which may and is intended to convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime because, under our adversary system, he deems that his sole duty is to protect his client- guilty or innocent-and that in such a capacity he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.

-- Watts v. Indiana, 338 U.S. 49 (1949)

The funny thing about what Justice Jackson said was that he was arguing against the right to remain silent, he wanted the guy convicted based on what he said because he thought our system shouldn't work in his favor, but given how the majority ruled in Watts his advice is to keep your mouth shut.

Don't They Have to Read Me My Miranda Rights?

The answer is to this question is complicated, but the practical rule is simple: don't talk without a lawyer. Sometimes they have to Mirandize you and sometimes they don't. The very basic rule is that you have to be informed of your rights before you are questioned by police while in custody or custodial detention. When are you in custody? When you can't leave. Many times they won't bother to question you after they have arrested you anyway. They want your confession or the admission of any facts that will help them charge and convict you of the crime they are investigating. To this end they often give you back your documents, but then keep trying to have a conversation with you.

Here's an example of this: the Oklahoma Bureau of Narcotics patrols the highways with unmarked cars (but you know which ones they are, they're generally obvious). They will radar cars they are interested in searching and pull them over doing 72 in a 70 or for other minor traffic infractions. They talk to the driver, run a check for any warrants and try to generate reasons to search the car. Often they have a dog handy to sniff the car (if the dog "hits" on the car then they have probable cause to search the car). Usually they have the driver and/or passengers sit in their patrol unit while they write up a warning (they don't want to go to traffic court, they're just interested in drugs) and having given you your documents and the warning then ask you if there's any contraband in the car and if they can take a look. It's amazing how many people say "yes" when they should have just asked if they can leave.

Don't talk. Identify yourself, give your license, give your insurance verification (or car rental agreement). Keep your mouth shut and, often, you can leave. During no portion of this example were the police required to Mirandize the person they were questioning. After all the questions didn't arise until the driver was free to leave (got his documents and ticket or warning handed to him).

Don't talk. If you are a suspect you aren't talking your way out of it, but sometimes you can be quiet and be left alone. You don't have the right to jabber, you have the right to be quiet. You have that right for a reason, exercise it.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...


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