Never talk to the police - An Idaho Attorney's Perspective

I want to speak to you today about an issue that comes up quite frequently with my clients and that is should they speak to the police should they speak to the police before they get an attorney should they speak to the police after they've hired an attorney that's the question I'm going to answer today in order to understand why you shouldn't talk to the police if you've been accused of a crime you first have to understand how our legal system works our legal system is what they call an adversarial system an adversarial system is different than say an inquisitorial system like some european countries have and in an inquisitorial system the judge takes an active role in the investigation of the case in our system and the adversarial system the judge doesn't take a role in the investigation they he's what they call a neutral magistrate and in our system the neutral magistrate acts as a sort of referee between two competing sides in a criminal case that would be the prosecution and the defense the theory behind the adversarial system and the reason some people believe that it's a good system is that when two sides are competing the idea is is it victor the victory between those two will be justice whether that's true or not and what the likelihood of that is is always up for debate but that is the theory behind the system you also need to understand what the police believe their role is in the adversarial system now it's hard to say what any particular police officer may believe their role is but in general police officers quite frequently see their role in the adversarial system as being on the prosecutors team they see themselves as a player in the adversarial system what this means is is that a police officer is not on your team we often see the results of the police seeing themselves this way in the way they conduct their investigations we see them turning your words on you being selective in their investigation of the evidence picking the things that may help their case ignoring the things that will not when you see this type of behavior that behavior is probably the direct result of the police officers seeing themselves as a player on the prosecution's team they see it is their job to convict the defendant when you are first charged with a crime as a defendant you have three very big advantages over the prosecution in the case the first advantage you have is the right to remain silent that means that they can't force you to talk they can't make you talk which is very important and a topic like this when we're discussing whether you should speak with the police or not the second thing you have is a presumption of innocence which means that you're presumed to be innocent until the state can prove otherwise and they must prove that as a trial which leads us to your third biggest advantage and that is that it's the state's burden to prove their case beyond a reasonable doubt you start off in a very good position in a criminal case with huge advantages over the prosecution but when you choose to speak to the police first of all you're waiving your right to remain silent now which means you're giving up on your big advantages in the case and then that can then in turn be used to overcome your presumption of innocence at a trial and it works to bolster the state's case to prove their case beyond a reasonable doubt quickly your case will begin to fall apart and as you can see in criminal cases today in jurisdictions across the United States prosecutions have very high conviction rates and the reason they do is because of mistakes that defendants make on a daily basis one of them is speaking to the police but you may say I'm innocent I want the police to know that so they don't charge me with a crime so that they don't take my reputation and drag it through the mud and I can understand that so the next question you have to ask yourself is what can be gained by speaking to the police can I convince them that I'm innocent well first you have to remember like we talked about earlier who they are and who they work for who they believe they work for and what they believe their role is in the adversarial system because of the way they view their position here they're gonna twist your words they're gonna give you the words you say an uncharitable interpretation another problem that I see quite frequently when we go to trial on cases like this is they're gonna ask you questions and the prosecutor would never be able to ask you at a jury trial first of all because you have a right to remain silent so they would never actually even get to ask you questions if you chose not to take the stand but if you did choose to take the stand we would be able to object to certain questions they may ask maybe questions a call for speculation or questions that may ask you about certain things that had happened to you or that you had done in the past and quite frequently the police officers can ask you those questions in an interview that is audio taped and then that audio tape comes into evidence at a trial and and then those questions can all be asked by the police officer in the audio there are questions that they could have never asked you in that way at a jury trial without pulling an objection and having that sustained and so that's that's another problem with speaking to the police another problem speaking to the police is everything you say to the police in that interview will be used against you at some point let's say you say something incriminating or at least something that they interpret is incriminating well that's going to be used against you to jury trial to try to convict you let's say that everything you say is perfect that you completely absolve yourself of any criminal liability whatsoever well and that doesn't happen very often but I have seen it happen and then what happens is ultimately they take a plea deal sometime down the road and at the sentencing hearing the attorney attempts to argue judge they've taken responsibility from the beginning and they're taking responsibility and accountability here today well naturally the prosecutor gets up and says judge that isn't what happened they haven't taken responsibility and accountability from day one in fact the defendant denied everything on day one and they refer back to the police officers audio transcripts so as you can see no matter what you say at some point what you say can be used against you so that's another thing to take into consideration even if you handle the investigation perfectly and you are perfect and answering the police officers every question which again doesn't happen very often but if you do it could still come back to bite you in the butt at some point another reason that you don't speak to the police is because everything you say can be used against you in trial but let's go back to the scenario where you set everything perfectly that you did everything that you were supposed to do in that interview and didn't make any mistakes well none of that stuff can be used to help you at the trial now this is because of the way the rules of evidence work and the rules of evidence will allow prior inconsistent statements to be used against you at a trial and that's one of the rules of evidences for impeachment purposes so if you say one thing in the police interview but then you come to trial and say something different they can use what you said in the police interview against you to impeach you but what can't be used at a trial except under very limited circumstances is prior consistent statements so if you come to trial and you say something and then you want to say well that's also what I said before to the police you're not going to get a say that acceptance and very particular circumstances so in summary the rules of evidence will allow all the bad stuff to come in and they'll keep out all the good stuff that you said in that interview so the interview will be a complete waste of time for you it will only help the prosecution it will not help your defense one worry that my clients frequently have is that their silence will be used against them and they want to talk to the police they want to talk to the prosecutor they want to tell them that they're innocent and they hope that speaking to them will convince them that they're innocent and that they shouldn't be charged well that that's not going to happen the police already think you're guilty it's their job to convict you the prosecution thinks they're guilty they've charged you talking to them isn't going to make a difference but what's more important is what the jury thinks because they're the ones that have the ultimate decision of deciding whether you're guilty or or not guilty this is what's important to understand first of all the prosecution cannot argue that you were silent therefore you must be guilty in fact if they make that argument you'll probably get a new trial the courts have determined that is such a damaging argument to the defense case that it's unfair and it cannot be used as an argument at trial further the judge is going to instruct the jury that you do not have to take the stand you do not have to speak and that the jury cannot use that as evidence of guilt that they cannot infer from your decision not to take the stand that you're guilty and so there's many checks along the way they're gonna make sure that the jury does not take your silence as evidence of guilt that's your right that's what goes along with the right to remain silent the reason that those who have been accused of a crime want to speak to the police is because they want to get their version of the facts out they want to speak to the police they want to show the police how credible they are and how the police should believe then over the other witnesses who are testifying against them and it's understandable that someone would feel that way but they misunderstand how the system works more often than not the police see themselves as being on a team and they see themselves and their job as to convict and most of the time very early on the police pick someone who they're going to convict and most of the time the police are simply digging and mining for evidence and so when you come in and you sit down to be interrogated the police are digging for evidence against you so that's more reason than any other to not speak to the police the clearest evidence that speaking to the police when you've been accused of a crime as a bad thing is that police officers themselves will not speak to the police when they have been accused of a crime they exercise their right to remain silent another clear indication of this is attorneys will hire an attorney be represented by an attorney and more often than not they will exercise their right to remain silent take the example of those who are in the know as to what the best course of action is when police officers and attorneys themselves are exercising their right to remain silent rather than trying to go to the police and get their side of the story in you know that that's a good indication that you yourself should be exercising your right to remain silent and not speaking to the police

Channel: Atkinson Law Office, PLLC

Views: 579,201

Rating: 4.8337255 out of 5

Keywords: Attorney, Lawyer, Criminal, Law, Boise, Idaho, Police, Rights, Crime, Court, Cops

Id: eCVa-bmEHuQ

Length: 13min 12sec (792 seconds)

Published: Sat Oct 27 2012