Should I Talk to the Police?

Most commonly asked question.

“Should I talk to the police?” along with “Should I take the Breathalyzer?” are the two questions I get asked most by clients and friends. Put lie detector on the list also. The answer is, almost invariably, “NO!”

20 years of Experience

I didn’t always answer no. Early in my legal career—in the 90’s—I would answer “it depends.” I thought that was the most accurate answer. I thought it was the safest answer. But after 20 years of defending citizens charged with crimes by the government—from Kane, DuPage, Will, Kendall and Cook county—I don’t think its the safest answer anymore. Sure it might still be the most accurate—there may be that rare case that talking with the police will help prevent an arrest or charge. I have yet to see one in two decades though.

They were going to arrest you regardless of what you told them.

Remember this, the police are charged with the task of gathering evidence. Once they have enough evidence to support a charge—and hopefully prove it beyond a reasonable doubt—they will go to the State’s Attorney’s Office and get felony charges approved (If it’s a misdemeanor, the Police don’t need the prosecutor’s approval), Believe me, if they had enough evidence to arrest you, the police WILL ARREST YOU! The reason the officer showed up at your door was not to give you a chance to talk him out of arresting you. He is there to gather evidence, specifically your confession. Confessions are the best evidence the police and prosecutors can get. Confessions make their job significantly easier. So when the detective tells you that he is “just giving you a chance to tell your side of the story,” and that “he already has all the evidence he needs to arrest you,” one of two thing are true. First is, maybe he is telling the truth and doesn’t have enough evidence. If that is the case, there is nothing you are going to say to him or her that will change that fact—I promise you that. The detective just wants to make the case easier for the prosecutor to prove. Second, and more likely, the detective does not have enough evidence. He is lying to you—and before you ask, yes, the police can lie to you to get you to confess. So, don’t give them that piece of information that will finish the puzzle for them.

You don’t know what you don’t know.

So many times, however, clients tell me that they only told the police “that they didn’t do it.” Or they said they never talked about specifics. The problem is…you don’t know what you don’t know. What I mean by that is, you don’t know what the police are looking for. You may not remember exactly what happened on the night in question, or make a mistake and give an answer that is inconsistent. Or you may confirm a fact that you deem irrelevant, but the police feel confirms the story given to them by an alleged victim. More importantly though, why risk it? There is nothing to gain.

Lawyer up!

At the very least, get an attorney before you talk to them. “I want a lawyer before I say anything,” are magic words. They put the police on notice that you are asserting your constitutional right to counsel. But don’t go and start vomiting information after you ask for the attorney. It is possible to waive that right? And you may not realize when you do. Actually follow through on your threat… and hire counsel.

Let them arrest you.

I get it. People don’t want to be arrested. That is why so many people talk and confess. The police know this. They exploit this fear. But the truth is, you have many constitutional rights that don’t kick in until they arrest you—Miranda for one. We are all aware that, “You have the right to remain silent. Anything you say can and will be used against you,” blah, blah, blah. We have all heard it. Know it by heart. What you may not know, is that a motion to suppress based on a Miranda violation only applies to a custodial interrogation—once you are arrested and in custody. The case begins at the arrest, for all intents and purposes. Police try and delay that start until they have as much evidence as possible. So once they arrest you, they are, to a certain degree, stuck with what they have.

Doesn’t it make me look guilty?

Absolutely not! Another common question/concern. Most people don’t know that the prosecution can never use the fact that you refused to speak to the police as evidence of guilt—an ignorance the police readily exploit. A jury would never be allowed to here that you refused to speak to the cops. The Fifth Amendment to the United States Constitution says, in no uncertain terms, that you have a right against self incrimination. You have the right to remain silent. That’s why it’s referred to colloquially as “pleading the fifth.”

Won’t the Cops think I did it?

They police think you did it anyway, and wouldn’t be at your door if they thought otherwise. The detective would not have brought you down to the station if he or she thought you were innocent. And sure, if you refuse to talk that might confirm for them that they were right to suspect you…but who cares? It doesn’t matter what the police think. They are not the trier of fact. The only people you should care about believing you are the jurors, or sometimes the judge. We love juries!

Anecdotal evidence suggests I’m right

A few years ago I started representing people pre-arrest. I frequently got calls from people telling me that the police wanted to talk to them. Usually I would tell them not to say anything, and ask for a lawyer. But people get scared in the face of two detectives. They would still talk, or unwittingly confess to something they didn’t do. So I started representing them. I came up with a fee to negotiate with the police pre-charge. Part of the retainer agreement would be that we would credit that fee to any future fees that would come after an arrest. Funny thing happened—I have yet to credit anyone. Not because I wouldn’t honor the agreement. Nobody’s getting charged! I am convinced now that the best defense to criminal charges is do not give the police inculpatory evidence in the first place. Simply speaking, assert your rights.

If the police get mad…you are doing the right thing.

Invariably the detective will be annoyed that you won’t talk to him. He may use words like “obstruction of justice,” “perjury, “ or “resisting arrest.” It is all baloney. If the officer gets angry, it is a sure fire sign you are doing the right thing. You are making his job more difficult, and that aggravates cops. Remember though, his job is to gather evidence to arrest and convict you. Why help him with that?

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