In most instances, talking to the police concerning a criminal accusation will not help the person being questioned and usually hurts them. Many people have an idea of a police officer or a detective as someone who has a balanced view, and will listen to both sides of the story fairly. The truth is, the reason the police probably is contacting a person is because they suspect that the individual has committed a crime or has material information as to a crime that has occurred, and they are trying to build a case. If the individual is in custody, this means that the police officer or detective believes that probable cause exists to arrest the person and that law enforcement is not on that person’s side. When the police have these beliefs they are clearly not balanced, and they are certainly not on the side of the person who they are investigating.
Police officers and detectives speak to individuals often to obtain a confession. A confession is desired because people who confess usually decide to plead guilty when the case is prosecuted, which results in less time, work, and expense for the police and the prosecution. People that confess also sometimes can be manipulated to assist the police on other matters (especially on drug cases) by using fear and promises of leniency to work against others who may be engaged in illicit activities.
The reasons persons sometimes choose to speak to law enforcement include: fear, intimidation, ignorance of the 5th Amendment privilege against self incrimination, arrogance (the person believes he or she is smart enough to talk himself or herself out of the situation), the hope for leniency, and/or the belief that since he or she is innocent of the allegation. The expression “the truth shall set you free” is often not true when it comes to criminal law, and more often than not the opposite of this expression is true. When the police want to speak with you about an alleged crime, you should immediately contact attorney Daniel Hilf of the law firm Hilf & Hilf, PLC.
In some instances a person is influenced to talk to the police or a detective by promises that the person won’t be arrested. This promise is made in many cases so that the Miranda Rights do not need to be read. Miranda Rights are the rights that are often shown on police television shows when someone gets arrested. “You have the right to remain silent. Anything you say can be used against you in a Court of law. You have the right to a lawyer. If you cannot afford a lawyer, one can be appointed to represent you at public expense”. Miranda Rights apply to in custody interrogations only, and not to people who are deemed to be out of custody. The fact that the person went on their own accord to be interviewed by law enforcement creates a strong argument for the prosecution that the statement was given freely and voluntarily and that the person was not in custody. This increases the chance that a Judge will not suppress the admission into evidence of the confession at trial if such a challenge is made by the defense. It also creates a false impression in the mind of the person being questioned that the police officer or detective is fair and balanced. If the person will not be arrested, there is a false hope that an arrest will not be made somehow if the police like the person or feel sorry for them. The person being questioned may have the mistaken belief that law enforcement may be on their side if they are allowed to come to the interview and leave once it completes. The statement that the person will not be arrested during the interview does not prevent him or her from being arrested shortly after the interview concludes. If there is a confession to a crime within the jurisdiction of the investigating police agency, an arrest always occurs at some point.
Sometimes a person will cooperate and make a statement based upon a promise of a personal bond or bail when a charge or charges ultimately are authorized by the prosecutor. This sometimes does occur, but it is usually an instance of a person winning a battle but losing the war. It is an easy trade off for a police officer or detective to recommend a reasonable bail or bond, knowing that a plea of guilty will likely be forthcoming in the near future. Bail or bond is at the discretion of the arraigning magistrate or Judge, and they do not even have to follow the recommendation of the police officer or detective. If the individual has retained a lawyer by the time of the arraignment – this usually goes a long way as to securing a reasonable bond. The defense lawyer can even get the lead detective to a case to allow the Defendant to turn himself or herself in, and not object to a personal or reasonable bond when the issue comes before the assigned magistrate or Judge. A person who makes the effort to hire a lawyer is not likely going to be a flight risk. The risk of flight, along with the risk to the community, are the main issues explored by the Court when the issue of bail or bond is addressed. For misdemeanor charges, there are many Courts that will allow for the arraignment to be waived an a personal bond entered if a lawyer files an appearance for their client.
Sometimes a person will cooperate and make a statement based upon a police officer or detective’s statement that he or she will speak to the prosecutor or Judge, implying that somehow this will ultimately help them. The bottom line is the prosecution will authorize whatever charge or charges it believes it can prove. In general the prosecution pursues the highest and most provable charge or charges against an individual. A confession may harm the individual’s hope of getting a great plea or sentence bargain in the future because the prosecutor will have less of a concern about his or her ability to win at trial How hard a prosecutor has to work is often motivation for him or her to resolve a case through the plea bargain or sentence bargain process. If the prosecutor has a confession, this concern is minimized.
A person sometimes cooperates and makes a statement based upon a promise by law enforcement that if the individual provides new information about others assists in other significant matters the matter that they have will be dismissed or reduced. In many instances law enforcement do not live up to their side of the bargain because they deem the cooperation as insignificant or as providing information that they already knew. In drug cases, sometimes the person engages in drug transactions as a confidential informant. This is often a dangerous proposition, because even though law enforcement may make efforts to conceal the identity of their informant, often times the target of the investigation can figure out who or how their arrest came about. Persons that are deemed “snitches” often have tough times in their community, in jail, or in prison. Again, ultimately it is up to the prosecutor to decide how they handle their cases. The police officers and detectives do not have the authority to make final decisions as to how cases are handled and disposed of.
The question that is often raised is that if someone is guilty, and wants to confess to relieve their conscience, why not go to the police and confess? The problem is that a confession places the individual at the mercy of other people without any discernible benefit. A person with a lawyer, and with knowledge that has not been shared with law enforcement, still may have some leverage. There is a right way and a wrong way to go about things. Hiring a lawyer does not prevent the person from confessing if this is ultimately what he or she wants to do, but it may place the person in a better position as it relates to the benefit he or she receives for the information that he or she wants to reveal. Even if a person has a desire to be punished for his or her actions, it does not mean that the punishment should be the most severe punishment available. If a feeling of guilt exists, a confession to the police will not completely cure such mental anguish. A confession may not even appease or satisfy the victim of the alleged crime. A confession may create more victims: the spouse, children, and the family of the person who will have the endure the legal collateral consequences of person with the guilty conscience (for example, economic and emotional hardships due to the fact that their loved one was fined, had to pay restitution, lost their job, and/or was incarcerated).
Another question raised is that if someone is truly innocent, what is the harm in speaking with law enforcement? It is important to know that most interviews will be conducted with a detective. A detective is trained in different techniques in extracting statements from individuals. Some individuals will confess to crimes they didn’t do, because psychologically they are telling the detective what they believe he or she wants to hear to submit to their authority. This is especially true when the person being interviewed is told repeatedly that they are not being truthful or is inconsistent in the statements that he or she makes.
When a person is interviewed by a police they are often nervous. Any Miranda Rights given earlier, or known through television exposure, are forgotten minutes into the conversation.
Sometimes a person’s statements can be misconstrued, or spun in an unintended direction. If a person speculates or guesses the answer to a question, the police officer may allege the person is a liar based upon other evidence concerning the case.
There are some individuals who tend to tell white lies based upon their personality or due to cultural issues. Any lies or inconsistencies are exploited and used against the person, even if the lie or inconsistency is to a minor issue. Why should a Judge or Jury trust the word of a Defendant to a major issue if it is established that he or she is not credible?
If the person forgets a detail about the case during the interview, it may be argued by the prosecution at trial that the person is not truthful because the story changed from when it was told at the police station to when it was told at trial. This is especially damaging when the interview was secretly videotaped, and the Judge or Jury can see and hear for themselves what was said.
Prosecutors are trained in the rules of evidence, and with the art of direct and cross examination. It is the job of the prosecution to point out lies, inconsistencies, and flaws to a defense. A person – no matter how intelligent, street wise, articulate, or charismatic – is no match against a trained and experienced detective and/or a trained and experienced prosecutor when it comes to questioning.
Providing information that may appear to be innocent may end up causing the person problems. The prosecution may question how the individual knew the information in question unless he or she was involved in the crime. For example, a persons statement in a murder investigation that “I don’t own a pistol” may cause the prosecution to wonder how the person knew a pistol was used in the first place.
Questions that may seem innocent to the person being questioned may have a significant hidden significance. The questions may be asked to try and establish a motive, the opportunity for the person to commit the crime, the lack of an alibi, the propensity to commit the offense, etc., etc. A person interviewed by the police without the benefit of an experienced criminal lawyer can never be fully prepared for all the consequences, both intended and unintended, of that interview.
Once a person confesses, the police and prosecution are not interested if the person recants that confession at a later date. Once a confession occurs, the police and prosecution maintain a stubborn belief that the confession is truthful and valid. They do not lose any sleep over the fact that the confession may be more a product of suggestion, fear, and/or intimidation than reality because they will generally ignore the reality of the situation.
It is important to note that sometimes once a person retains a lawyer, the decision is sometimes made by the individual to cooperate with law enforcement.
Sometimes, with an experienced defense lawyer in charge, the prosecution may be convinced not to prosecute a case because of a lack of probable cause or that it would not be in the interest of justice for the case to go forward against the individual.
Another benefit of hiring an experienced criminal lawyer is that the lawyer has the ability to negotiate for a proffer agreement or immunity to limit the potential damage from speaking to the police and prosecution. A proffer agreement is a written agreement between a prosecutor and Defendant that permits the person to give the government information about crimes with some assurance that the information will not be used against them unless there is independent evidence that leads to new evidence that forms the basis of the criminal prosecution. Immunity from prosecution, in general, is rarely offered or given.
The lawyer also has the ability to seek a plea bargain or sentence bargain with the prosecution in exchange for the cooperation. A plea bargain is an agreement to reduce or dismiss certain charge charges in exchange for a guilty or no contest plea to another charge or charges. A sentence bargain is an agreement with the prosecution for a particular sentence in exchange for a guilty or no contest plea.
The lawyer has the ability to prepare their client for the interview with the police and/or prosecution. This reduces the chances that the statement is taken out of context, or that important facts are not excluded.
In conclusion, a person that is accused or a suspect in a crime should never provide any statement or information to law enforcement, unless this is done through their lawyer.
Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able – just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.