Criminal Defense Blog NYC

Your Right to Remain Silent: Never Speak with Police

Posted by Bruce Yerman on May 2, 2018

Your right to remain silent never speak with police

A detective calls. Says he wants to speak with you...

Wants to hear your side of the story. Doesn’t say he’s going to arrest you. He sounds reasonable.

Always remember that you have the right to remain silent: when police want to speak to you, you should never speak with police.

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The detective is trying to persuade you to tell him anything. The problem for you is that the detective will never believe you unless you confess to committing the crime that he’s investigating.

Innocent, guilty, or somewhere in between. It doesn't matter.

Tell the truth; tell a lie; say a little or a lot; innocent, guilty, or somewhere in between.  It doesn’t matter. The police will arrest you no matter what you say. Of course, they won’t tell you this up front. They might encourage you to believe otherwise.

The police want to speak with you because they think you did it. Even if you didn’t commit a crime, they possess some evidence tending to prove you did. For example, if one “witness” says he saw you commit a crime, the police have enough evidence to arrest you. It doesn’t matter if that one witness is your mortal enemy; if that witness has a financial motive to falsely accuse you; if he’s a known liar. No matter how innocent you are – no matter how charming and persuasive – you will not talk your way out of getting arrested.

Since the police will arrest you no matter what you say, do not, under any circumstances, speak with police without having a lawyer physically present. (This is the only way your lawyer can cover your mouth with his hands to prevent you from speaking.)

Your words are extremely valuable to police. Keep them to yourself. Don't give them away.

You have the constitutional right to remain silent. Use it. Always! No exceptions.  Never speak with police. If your lawyer isn’t present, keep your lips sealed. Don’t give a written statement either. Don’t shake your head “yes” or “no”, or use any other body language. There’s nothing the police would like better than to get you talking.  However ...

There are so many ways in which a conversation with police could go wrong:

1.  You might confess to a crime that you committed.

If you ever feel the need, confess to your lawyer; no one else. Never speak with police. Communications with your lawyer about crimes committed in the past are privileged and confidential: your lawyer may not repeat your confession to anyone.  Once the urge to confess has passed (it will), you will be pleased that this rule exists. Confess to your lawyer and no one else: relieve your conscience without going to jail.

2.  You might admit one or more facts that tend to prove you guilty.

You might admit being present when the incident occurred. You might admit knowing your accuser. You might admit having had consensual sex. You might admit having stabbed your accuser, in self-defense.

Each of these admissions is a nail in your coffin. Consider, instead, allowing the police to build their case without any help from you. Never speak with police.

3.  You might lie to the detective.

Every innocent person knows of at least one fact that makes her guilt appear more likely. The temptation to lie about such facts is great. However, lying to the police is a really bad idea.

If you tell one, single lie that can be disproved, the prosecutor will have a basis to persuade a jury that your lie proves “consciousness of guilt” – that is, a) you lied to hide the truth, and b) only guilty people do that. This would be an unfortunate turn of events, especially if you’re innocent.

(Notice from these last two examples, whether you lie or tell the truth, you’re worse off than if you’d said nothing.)

4.  The detective might misunderstand you.

You don’t have a constitutional right to be interrogated by an unbiased detective with perfect listening skills. And let’s be frank, you don’t always express yourself with unerring precision. If something gets lost in translation (it will), you and only you will pay the price.

5.  The detective might not remember everything you say.

How could he? He didn’t record your conversation. He didn’t even take notes. In fact, he didn’t begin writing down anything you said until several hours after he finished speaking with you. Unfortunately, he will tend to remember the parts of the conversation consistent with your guilt, while forgetting the parts consistent with your innocence. That’s because his goal in speaking with you is to prove that you’re guilty, not to determine the truth.

6.  The detective might lie about your statement.

Solving crimes is hard work, and the NYPD has lots of crimes to solve. For the detective who interrogates you, perhaps the temptation to “solve” the case by inventing evidence – from words you never spoke – will be irresistible. The detective might falsely claim you made incriminating statements that in fact you never made.  This happens a lot more than you would imagine.  Really. No matter how much you imagine it might happen, it happens more.

7.  You might confess to a crime that you didn’t commit.

Detectives are trained to use time-tested techniques designed to elicit confessions.  These techniques include deceit, false promises, physical force, threats, sleep deprivation, bathroom deprivation, hunger, fear of jail, fear of ACS taking your children away from you, and other forms of psychological coercion.

These techniques are so effective that they often cause innocent people to confess to crimes that they didn’t commit – just to get the interrogation to stop.

Fortunately, in the United States, you have the constitutional “right to remain silent”, also known as the “Fifth Amendment privilege against self-incrimination”: your refusal to speak with police can’t be used as evidence against you in a criminal case.

Exercise the privilege. Never speak with police who are investigating you. You shouldn’t lie to the police, but you can, and always should, remain silent. All you have to do is say nothing.

Even better than saying nothing, tell the police you need a lawyer. In New York, requesting a lawyer requires the police to stop questioning you until you have a lawyer present.

Your answer to every question should be: "I need a lawyer." If the police ask you 1,000 questions, then each of your 1,000 answers should be: "I need a lawyer."

Say nothing. Not one word. What could be simpler?

If you're contacted by police, immediately retain a lawyer. The lawyer should consult with you right away. The lawyer should inform the detective that you’re represented by counsel, and that the detective may not speak with you. By doing this, your lawyer will prevent the detective from legally questioning you. However, if the detective illegally questions you, then you must be vigilant and never speak with police.

When your lawyer tells the detective that he may not question you, the detective will most likely tell the lawyer that he intends to arrest you. Don’t use this turn of events as an excuse to start speaking!

The detective always intended to arrest you – long before he first introduced himself to you. However, his goal was to speak with you first, at the precinct, hoping to strengthen the case against you – and then arrest you. Don’t think for one second that the detective decided to arrest you because your lawyer wouldn’t let him question you, or because you asked to speak with a lawyer, or because you refused to speak.

If the police want to question you or arrest you, contact a criminal defense lawyer immediately, to act on your behalf – before you spill your guts.

Bruce Yerman is a New York City criminal defense attorney.  If you'd like to discuss criminal defense, contact Bruce for a free consultation:

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Topics: Right to Remain Silent, Fifth Amendment