By: Michael J. McConnell, Criminal Defense Attorney in New York
Getting arrested is often a scary experience. It is normal to feel nervous, confused, and maybe even angry. Human nature in that situation is to want to explain yourself. To tell the police your side of the story. Maybe you think you can get them to let you go or not arrest you at all. Those are all normal things to think after getting arrested, but the reality is that it is almost always a huge mistake to talk to the police.
In this article, I will explain why speaking to the cops can really hurt your case. There is hardly ever a scenario where talking to them is going to help you. Let’s talk about why that is.
Understanding Your Right to Remain Silent
You have a constitutional right to remain silent under the 5thAmendment of the United States Constitution. This means that you simply don’t have to talk to the police if you don’t want to. And as I’ll explain more below, you usually don’t want to talk to them – even if you’re innocent.
In fact, when you’re arrested, the police actually have to tell you about your right to remain silent. This is part of your “Miranda warnings.” Miranda was a Supreme Court case that basically said the cops have to advise you about certain rights, including that you have the right to remain silent and that anything you say can and will be used against you in a court of law.
One of the reasons you have a right to remain silent is that it is always the job of the police to show that there was probable cause to arrest you. Then after that the prosecutor needs to prove your case beyond a reasonable doubt to convict you.
The framers of our Constitution understood that since it is the government that bears the burden of proving you guilty, you should not be forced to tell them anything. They either have the evidence or they don’t. They can’t force you to tell on yourself or make other admissions that can hurt your case.
Do Only Guilty People Remain Silent?
Keeping silent during an arrest might sound strange at first. Shouldn’t you speak up if you have nothing to hide? What if you did nothing wrong? Don’t police want the truth?
While those are great questions, the general answer is that you should still remain silent even if you are not guilty. This applies even to situations involving mistaken identity, false accusations, self defense and more. Regardless of the situation and no matter how innocent you might be, you are still better off not saying anything to the cops. Here is why.
First, if the cops already have probable cause to validly arrest you, the reality is that nothing you say is likely to change their minds. So in that case, anything you say will either be disregarded or used against you. As I’ll discuss further below, you might be surprised how seemingly innocent statements can kill your case.
Second, if the cops currently don’t have probable cause to arrest you, they might be looking for you to say something that doesgive them probable cause. You might think that what you’re saying is helpful to exonerate you, but in fact the police might view it as giving them probable cause to arrest.
Third, you should know that remaining silent is NOT evidence of guilt. If you refuse to talk to the cops, the prosecutor is prohibited from saying that your silence is proof that you are guilty. Knowing this is important because people who are arrested – especially people who are innocent – often make the mistake of thinking their silence can be used against them, which simply isn’t true. Therefore, you can refuse to talk to the cops without worrying that it will be used as evidence that you are guilty of the crime.
Even If You Didn’t Do Anything Wrong, You Might Make a Mistake When Talking to the Cops
Since it is normal to be nervous when being questioned by police, it is very common for people to forget a small detail or make a mistake about something that happened. The problem is that the police might view your omission or mistake as proof that you are lying.
The Police Could Twist Your Words Against You
In fact, even if you are completely calm and think you gave a perfect statement, the police could twist your words to make it seem like you were saying something else. It is better to not give them this opportunity, which is why it can be so critical to exercise your right to remain silent.
The Police Are Not On Your Side
No matter how friendly or nice they might act towards you, the police are usually just trying to build a case against you. They might ask you trick questions. They might pretend they know something that they really don’t. They might even lie to you about some sort of proof or evidence they have that doesn’t actually exist.
This is why if you talk to them you really risk saying something that hurts your case – even if you are completely innocent.
For example, you might say something like “I was in the area but didn’t commit the crime.” You might think that statement exonerates you, but from the police officer’s perspective it is proof that you were in the area, which increases the odds that you could’ve committed the crime. Had you just stayed silent, maybe they wouldn’t even have evidence that you were in the area at the time of the crime.
Anything You Say Can Be Used Against You in Court
If you are charged with a crime, you cannot be found guilty (i.e., convicted) unless the prosecution proves that you did the crime beyond a reasonable doubt. That is a really high standard and requires lots of evidence.
The last thing you want to do in a case where the prosecution lacks evidence is to give them a statement that they can use against you. As I mentioned above, the statement doesn’t need to be a full confession or anything like that in order to be used against you.
For example, in a robbery case, saying “I was there but didn’t rob anyone” can be used by the prosecutor to prove that you were at the location of the robbery. If the person accusing you of robbery is saying it was you, the jury might still have questions as to whether it was really you. Without any independent evidence proving that you were at the scene, they might not find you guilty beyond a reasonable doubt. But now with your statement that you were there, they might find it easier to convict you.
You Can Always Say Something at a Later Point If Necessary With Your Lawyer Present
Are there situations where it may make sense to speak with law enforcement about a crime that you are accused of? Yes there sometimes are, but you would only want to do this if your lawyer is there with you.
A criminal defense attorney can help you understand whenit is the right time to speak, if at all. If you talk too early, especially without a lawyer, you could say something that you can never undo. That is too risky when you are charged with a criminal offense that could result in jail or prison time.
Your lawyer will know the law and can help you better understand the process. They can fully explain your legal options when it comes to potentially giving a statement or testifying in court.
The Best Thing to Say to the Cops is Usually This: “I Want to Speak To a Lawyer”
The Constitution gives you a right to a lawyer, so if you’ve been arrested or charged with a crime it is important to know that you have this right.
As just about every single lawyer will tell you, the best thing you can say to the cops when they’re questioning you or if you’ve been arrested is this: “I want to speak with a lawyer.”
That is it. No more talking. No answering questions until you’ve had a chance to discuss strategy with your lawyer. Simple as that.
Summary: Stay Silent to Protect Your Rights
Regardless of whether you’re charged with a low-level misdemeanor or a serious felony, getting arrested is always a big deal. In a serious situation like this, knowing your rights is critical. You have a right to remain silent and the right to a lawyer. Yet those rights can be meaningless if you forget you have them or fail to exercise them. This is why the smartest thing someone can do when being questioned by the police or arrested is usually this: ask for a lawyer and remain silent.
The police and prosecution have to prove your guilt – don’t make it easier for them by giving a statement. Even if you did nothing wrong, they can spin your words and twist them to make you look guilty. Don’t make that mistake. Ask for a lawyer and stay silent.
This blog post is for educational and informational purposes only and does not give legal advice. If you or someone you know is arrested, it is highly recommended that you speak with a qualified criminal defense attorney as soon as possible.