Being accused of committing a crime can certainly ruin your day, if not your week. The only thing that could make that situation worse is to be arrested and spend a few days in jail…or is it?
Ok…being arrested and going to jail, especially for a crime you did not commit, is definitely a horrible, life-altering experience. But I can think of one thing that is worse than a few days in jail - being tricked or trapped into confessing to a crime by law enforcement and spending years in prison.
As a criminal defense attorney, I have the benefit of having worked on thousands of cases. In each case, I am able to review the police reports and meet with my clients. The first thing I typically look for in reading the police reports is an alleged confession on behalf of my client. Why? Because by and large, a confession is always going to be the worst fact in the case. I want to know where my bad facts are.
If I find an alleged confession by my client, I then start to look at the circumstances on how that confession came about. In over 70% of the cases, the confession is not obtained by police after an arrest. It is obtained before the arrest. How?
Well, if you agreed with the above idea that being arrested and going to jail is a horrible, life- altering experience, then you similarly would want to do just about everything you could to avoid it…right? This would naturally include trying to talk your way out of the situation so you don’t get arrested. To you, if you just talk to the police and explain your side of the story, you won’t be arrested or charged later for committing a crime. To your criminal defense attorney, it’s the worst thing you can do to your case and risks you spending years in prison.
The fear you experience is so great, so primal, that you literally go into “fight or flight” mode. Police officers know this and literally “prey” on your fear of being arrested and going to jail. In fact, the worst thing a police officer can do is arrest you first, then ask you questions. Why? Because with an arrest they have already removed the fear and incentive for you to save yourself by talking. In other words, the harm has already been done.
Instead, police officers are trained to attempt to “talk” to you first before making an arrest. You might get a call, or an unexpected visit from a detective, who will usually throw out one of the following lines:
“Hey man, I just want to talk to you about….”
“Just tell us your side of the story. Help us understand….”
“If you talk to us then maybe we can get this all cleared up….”
There are many different versions of this type of solicitation from police officers, but it is all designed to get you to talk, and it is all predicated upon your fear to save yourself and avoid being arrested. We like to think we are intelligent and capable of helping ourselves, but you talking to police does not and will not have the intended effect we think. Here are some things to keep in mind:
1. A police officer’s job is to investigate crime, not to exonerate you.
2. If a police officer is asking you questions, they have already made a determination that you have likely done something wrong.
3. Because they already believe that you have done something wrong, a police officer is likely going to arrest you anyway, whether you talk to them or not.
Therefore, getting you to talk and make some admissions is just a bonus to them before they arrest you. Not that being arrested is what we desire, but talking and being arrested is much worse and carries potentially long lasting consequences. Try to forget about short term gains and focus on long term results.
Another reason police officers like to ask questions before making an arrest is because they can avoid having to warn you, through the Miranda rights, that what you are about to say can and will be used against you in a court of law. Many people assume that unless they are given their Miranda rights, then a confession doesn’t matter. This could not be further from the truth. Police officers are only required to Mirandize you when two things happen: 1) they arrest you; and 2) they ask you questions about the case. Now arrest is somewhat subjective, and can include the use of handcuffs, or the restriction of movement through a show of force or authority. The questions themselves have to be reasonably calculated to lead to incriminating responses. So if the police are asking you questions, and you are not under arrest, then your confession is admissible and Miranda does not apply. Similarly, if you are in custody, and you make voluntary statements that are not responsive to a police officer’s question, then your confession is admissible and Miranda does not apply.
So what do you do? Well, I have developed a powerful response that you can use to quickly turn the tables on the police. Here is what I tell all of my clients to say to police officers when they show up to “talk”: I am more than happy to answer all of your questions officer. Would you mind if I just get my attorney here first before we begin? This statement has more meaning than meets the eye of a lay person. First, the statement invokes the right to counsel. The right to counsel is a constitutional right to have an attorney present when any questioning is being conducted. The invocation of that right by the accused actually requires police to stop questioning you, immediately. Second, the statement is not an outright refusal to answer questions, and you cannot be perceived as “hiding” information or being “uncooperative” or difficult with police officers. In a very nice way, you are agreeing to be cooperative with the officer so long as you can have your attorney present. Third, and most importantly, the statement is a litmus test for you to see what the true intentions of the police officer are. For example, if you say this statement, and the officer immediately changes his or her mood, i.e. becomes angry, aggressive, frustrated, etc., then you know that he never just wanted “to hear your side of the story” or “clear things up”. He or she wanted you to trick you into making a confession or admission, then arrest you. He or she knows that your attorney would have prevented that. On the other hand, if the officer says “Sure, go ahead and give them a call, we will wait…”, then the officer was truly interested in what you had to say without prejudgment or an agenda. Why? Because if he didn’t have an agenda, then he would feel comfortable asking you questions, even in front of your attorney. He wasn’t trying to trick you. In conclusion, the presence (or threat of presence) of your attorney should not affect a police officer desiring to question you unless there is ill intent.
In Colorado, you have the right to an attorney as soon as you are arrested, whether you can afford one or not. C.R.S. § 18-1-403. Unique to Colorado, there is a state public defender system – which means every county in every court house is supplied with criminal defense lawyers. If you are in custody, you are entitled to have one of these lawyers appointed to your case. If you are out of custody, then you must financially qualify for their representation or hire your own. In any case, the simple request for a lawyer is enough to protect you. Since you have the right to an attorney, it begs the question…why would you want to try and handle your case on your own without one? Turning down legal representation is like performing surgery on yourself. It’s not going to end well if you attempt to remove your appendix yourself, no matter how “smart” you think you are. True intelligence means surrounding yourself with professionals who are trained to protect you.
For further information or questions, please contact The Evans Criminal Defense Law Firm.