Having practiced criminal law in state and federal courts for more than
a decade, I’ve learned several things, one of which is the simple
principle that there are common mistakes made by defendants or defense
attorneys that lead to convictions.
One of the biggest mistakes a person can make is talking to cops.
It is my opinion that the most common reason people are in jail or prison
is because those same people believed it would be a good idea to try and
explain or justify their behavior to law enforcement. It doesn’t
matter the crime for which people are ultimately convicted - the crime
could be driving under the influence, possession of drugs, assault, rape,
murder, etc. Regardless of the crime, a common trait amongst those people
sitting in jail or prison is that they believed it was in their best interest
to try and talk themselves out of a bad situation.
And it makes sense that people try to talk themselves out of an arrest
Most of us were raised by parents who told us that it is “always
best to tell the truth” - that if you are simply honest, nothing
bad will happen.
That notion may be true when speaking with a priest, a counselor (sometimes),
a doctor or a lawyer, but it is certainly not true when talking to the police.
Regardless of what explanation or story a person offers about his or her
behavior, that explanation or story will be used by a prosecutor to try
and secure a conviction. Even the most seemingly benign explanation presented
by a person investigated for a crime will be used against that person
during the criminal process.
Take, as a simple example, a person named “Joe” who is charged
with sexual assault after a date-rape type of situation where Joe and
a woman supposedly went on a date, ate dinner, had a few drinks, went
back to her place and had sex. The next day, the victim claimed, “Joe
raped me” and now Joe is the target of a felony investigation.
Inevitably, cops will end up trying to contact Joe and get “his side
of the story”. Cops frequently provide suspects the opportunity
to provide his or her “story”, and they will say the following
phrases to trying an convince a suspect to talk:
- “We will talk to the prosecutor for you if you are honest with us.”
- “We heard her side of the story, now we just want to hear your side
of the story.”
- “No matter what you say to us, you will not be arrested.”
Those statements are lies, and even if they aren’t, the sole purpose
behind those statements is to convince a suspect to talk, and the only
reasons a cop wants a suspect to talk is to provide a basis for a subsequent
What the cops don’t tell a suspect like Joe is that they already
have enough evidence to arrest Joe for a felony; that probable cause for
arrest existed the second the woman said “Joe raped me”. What
they don’t tell a suspect like Joe is that they are looking for
him to help pin down facts, facts that will narrow the issues and make
it easier for the prosecutor to convict Joe. For example, the cops will
hope Joe corroborates that he did, in fact, go on a date with the victim,
that they did have dinner and a few drinks, and that they did go back
to her place and have sex. Once Joe’s own statement corroborates
those predicate facts, the only thing left is whether a jury will believe
Joe or the victim.
Simply restated, by talking to the police, Joe helped prove most of the
predicate facts of the case.
You may be thinking, “well so what ... weren’t the cops going
to arrest Joe anyway?”.
The answer is probably, “yes”, but without Joe’s statement,
the prosecutor would have to prove all of the things that Joe provided
on a silver platter. Without Joe’s statement, the prosecutor would
have to prove that Joe knew the victim, that Joe and the victim made plans
to go out on a date, that they did actually go out, that they did have
a few drinks, and they did go back to the victim’s house and have sex.
Certainly those things may be “easy” to prove, but maybe not.
Maybe the victim has a history of making false accusations in the past
and without Joe’s statement, the victim’s claims weren’t
credible. Maybe the victim had too much to drink and wasn’t sure
exactly what happened but she just “thought” she and Joe may
have had sex, but combined with Joe’s statement, the victim’s
lack of memory is now proof that she was “incapable of consenting
to sex” because of her inebriated state.
Joe - like all of us - was probably raised to believe that honesty is the
best policy, but when it comes to criminal investigations, the best policy
is to simply shut up and talk to an attorney.