“Don’t talk to law enforcement without consulting a lawyer” is simple advice. Anyone can follow it. Most of us understand why it’s a good idea. But too many people reject the advice because of a common and misplaced fear. It’s the fear that if they don’t return that detective’s call immediately, if they don’t invite the FBI agents at their door in and answer their questions, if they don’t cooperate, they will be seen as the sort of person who wants a lawyer. They will be seen as someone suspicious. They will lose the opportunity to “clear all this up” by “cooperating.”
If I say I want to talk to a lawyer, won’t I make things worse?
No. Almost certainly not.
When you view any interaction as your only opportunity to “cooperate,” you’re accepting a false premise, a law enforcement pressure tactic calculated to get you to act against your best interests and better judgment. On television, cops constantly tell suspects “you have to talk now, talk first, or we’ll give a deal to your buddy.” On television, that proposition is presented as true. But real life isn’t like television. In real life, that “now or never” proposition is almost always false. In 21 years practicing criminal law, I have never seen a circumstance where stopping the interview and talking to a lawyer would have destroyed someone’s opportunity to talk to law enforcement and resulted in harm to their best interests. There’s always been another chance, once the client has talked to a lawyer and taken advantage of competent advice about the situation.
The police want you to talk immediately, now, when they are unexpectedly at your front door. They want you to be startled, nervous, out-of-sorts. They want you to blurt things out — either admit true things that they can use against you, or make false statements that they can disprove and use to show you’re a liar. They don’t want you to have time to collect your thoughts, to refresh your memory about the events they are asking about, to look at any relevant documents or evidence, or to figure out the legal significance of the situation. The police know that’s against your best interests. They know that you should talk to a lawyer first. How do you know that they know that? You know because police officers consistently push for state laws and union rules allowing them to talk to a lawyer, review evidence, and take advantage of a waiting period before being interviewed about use-of-force incidents.
Good people — honest people — tend to think “I’ve done nothing wrong, so if I tell the truth now, I can clear this up.” They think “talking can’t hurt me because I haven’t done anything wrong, and because I won’t lie.” It would be wonderful if that were true, but it’s not.
Ken White, “‘If I Just Talk To The Police I Can Clear This Up’ — The Dangerous Delusion”, Brown, White & Osborn, 2015-09-24.
May 12, 2017
QotD: Don’t talk to the police without legal counsel
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