Don't speak with your accuser.
Doesn't matter if your accuser is someone you know, or a stranger. Doesn't matter if you're innocent or guilty. Doesn't matter if you're aware that police are investigating you.
Never speak with someone who accuses you of committing a crime!
Don't Have a Conversation
Be on high alert if anyone tries to discuss criminal behavior with you. Immediately end the conversation.
If someone you're romantically involved with accuses you of domestic violence, immediately end the conversation.
"Immediately end the conversation" means: say absolutely nothing. If the conversation is in person, walk away. If the conversation is by phone, hang up.
If someone you had sex with claims no consent, immediately end the conversation.
If someone wants to discuss criminal activity with you, immediately end the conversation. Assume that person is cooperating with police.
Anything You Say Can Be Used As Evidence
Anything you say to anyone can be used as evidence against you in a criminal case.
There are very limited exceptions to that rule. Here are some:
- Statements you make to your lawyer can't be used as evidence against you (unless you tell your lawyer that intend to commit a crime in the future).
- Statements you make to your spouse can't be used as evidence against you (except for statements made during the commission of a crime against your spouse).
- Statements you make in response to police interrogation, while you're in custody, can't be used against you (unless police first give you "Miranda warnings").
If you're facing criminal charges, the last thing you need is your own words to be used as evidence against you.
So, never speak with your accuser.
Spoken Words Can Be Used as Evidence
Maybe you believe that spoken words can't be used as evidence. This belief is false.
An oral statement made during casual conversation might be less reliable than a written statement, or a digitally recorded statement. This is because the person who testifies about your oral statement:
- Will rely on imperfect memory of what you said, rather than fixed words written on paper or recorded in a digital file.
- Might be biased against you.
- Might be motivated to testify falsely about what you said.
However, despite its shortcomings, an oral statement may be used as evidence against you in court. So, making an oral statement, while refusing to provide a written one, doesn't protect you in any way.
In some ways an oral statement is more dangerous than a written or recorded statement: an oral statement isn't limited by what's written on a piece of paper or what's recorded in a video.
Anyone who hears you speak can claim you said anything.
Assume You're Being Recorded
Assume that anyone who's accusing you is recording the conversation.
This assumption should motivate you not to speak.
If you're innocent, don't try to set the record straight by giving an accurate description about what happened. You'll unintentionally say something that incriminates you.
If you're guilty, don't create a lie to cover up your guilt. You'll end up saying something that's contradicted by other evidence, that's inconsistent with something you said in the past, or that will be inconsistent with something you say in the future.
It's Not Illegal to Record You
In New York, anyone can "wear a wire" and record their conversation with you.
It's not illegal. It doesn't require a warrant.
New York is what's known as a "one-party consent state". If one party to a conversation consents to the conversation being recorded, the conversation may be legally recorded without an eavesdropping warrant.
"Controlled Phone Call"
Police often use an investigative technique called "controlled phone calls" in sex crime investigations where the accuser knows the accused.
In a controlled phone call, the accuser calls the accused at the request of police. The police are present with the accuser, recording the phone call. Recording the call without a warrant is legal because the accuser has consented to it.
During the phone call, the accuser confronts the accused with claims that accused forced the accuser to have sex, or that the the accuser didn't consent to sex, or that the accuser was too intoxicated to consent.
Even if such claims are false, the accused might apologize, or agree with some of the accuser's allegations.
So, as with any other accusation, if someone confronts you with allegations of rape or sex abuse, immediately end the conversation. Even if you know the person –especially if you know the person. Assume that police are conducting a controlled phone call, to be used against you as evidence in court.
Police Rarely Must Give Miranda Warnings
Police don't have to read "Miranda warnings" to you when you're not in custody.
Miranda warnings sound like this:
- You have the right to remain silent and refuse to answer questions.
- Anything you say can be used against you as evidence in court.
- You have the right to consult a lawyer before speaking with police, and to have a lawyer present with you during questioning.
- If you can't afford a lawyer, one will be provided for you without cost.
- If you don't have a lawyer available, you have the right to remain silent until you have the opportunity to consult with one.
- Now that I've advised you of your rights, are you willing to answer questions?
Some people mistakenly believe that police must always read Miranda warnings before asking questions. They believe that they may safely speak to police in the absence of Miranda warnings, because un-Mirandized statements can't be used against them in court. This false belief can lead to disastrous consequences.
Police are only required to read Miranda warnings when the person questioned is "in custody".
Always assume that you're not in custody. If police tell you that you're not free to leave, assume you're not in custody. If you're in an interrogation room at a police station, assume you're not in custody. If you're handcuffed behind your back, assume your not in custody.
If police tell you that you're not free to leave, while you're handcuffed behind your back inside a police interrogation room, assume you're not in custody. Because police will lie under oath and claim you spoke to them under very different circumstances.
If anyone – civilian or police – accuses you of a crime, end the conversation immediately.
Then, immediately contact a criminal defense lawyer for advice how to approach the accusation.
Criminal Defense lawyer Bruce Yerman has 26 years of experience defending clients accused of crimes.