Natty Shafer Law

Utah lawyer for criminal and immigration cases

Tag Archives: custodial interrogation


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Why You Shouldn’t Talk to the Police, Part 2: There’s No Reward for Admitting Guilt Early

Part 1: They Take Your Comments Out of Context

Anytime you talk to the police, there is a chance you will admit guilt without any benefit in return. Police commonly give a vague promise to put in a good word with the prosecutor for people who cooperate. The police may indeed tell the prosecutor that you cooperated with them, but that just will not get you a deal any better than what a lawyer could get for you. Allow your lawyer to extract concrete, definitive deals from the prosecutor instead of vague promises.

Also, with how many laws are on the books these days, you may unintentionally admit guilt to crimes that the police had not been previously investigating. Even if you are innocent of the original charge, that gives the government leverage against you, which they can use to conduct further investigation. Information you divulge gives the police tools to request search warrants, wiretaps, or other investigative tools to further incriminate you. Instead of ending the investigation, it will be prolonged.

If you feel you must admit guilt—you need to get something off your conscience—you’re better off telling a member of the clergy or your therapist. Confession may indeed be good for you, but that’s a matter between you and your conscience or your God. Talking to the police will do little to assuage your conscience.

Some people feel that there is no harm to admitting guilt if it only tells police what they suspect or know already, That simply isn’t true. For any number of reasons, witnesses and police officers are frequently unavailable to testify. If a key witness is unavailable, your lawyer may be able to negotiate a better deal, or perhaps the government will be forced to drop the case altogether. However, if you have already admitted guilt, it doesn’t really matter if key witnesses can’t testify. A confession is sufficient by itself to get a conviction.

There’s simply no rush to admit guilt. You can always take a plea offer from the government later, but you cannot take back your impetuous decision to tell the police everything. Most criminal proceedings end in a guilty plea anyway. If you allow your lawyer to do their job, you can extract some sort of promise from the government in exchange for your confession. Regardless of the reason you want to talk to the police, you’ll be better served if you wait until time has passed and you have had a chance to talk to a lawyer.


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Why You Shouldn’t Talk to the Police, Part 1: They Take Your Comments Out of Context

In past posts, I’ve tried to drive home how important it is that you never talk to the police without a lawyer present. Today, I’m going to launch a series of posts outlining specific reasons that talking to the police gets people into trouble. (Incidentally, it’s unlikely that the police will ever refer to their questions as “interrogation.” Police departments throughout the country, including the Salt Lake City Police Department, have figured out that calling it interrogation has a bad connotation. Police officers are likely to call it an “interview,” “questioning,” a “chat,” or any other word to give you the impression that you are just having a friendly conversation.)

If the police ever interrogate you, the questioning usually goes on for hours. After all, they’re getting paid to question you and they’re in no rush to do their other, more boring work. The police interrogate people they already think are guilty of a crime, and you can’t talk your way out of their suspicions. During the hours and hours of questioning, it is inevitable that you will say something that sounds bad, especially if taken out of context. In court, the police officer will repeat this incriminating sounding statement without any context whatsoever.

The following scene from the movie My Cousin Vinny is a great example:

Bill Gambini (Ralph Macchio) thinks he is confessing to stealing a can of tuna fish, but the Sheriff (Bruce McGill) thinks he murdered a store clerk. As Bill begins to understand what the interrogation is really about, confused, he asks (twice), “I shot the clerk?” Well, later in the movie the Sheriff testifies in court, but when he recounts Bill’s “confession” it’s no longer a question, but rather a simple statement, “I shot the clerk.” In the movie, Bill’s character nearly gets convicted for murder over this. In real life, you won’t have a Hollywood screenwriter to save your bacon.

Police officers have interrogated thousands of people before and know more about interrogation than you. They will ask you lose-lose questions, and you will be left with the choice of either lying or saying something unflattering that will look terrible when taken out of context. Say, for example, your neighbor’s house got robbed and the police suspect that you are somehow involved. You and your neighbor have been having a dispute about her tree, which the police already know. During the interrogation they ask you if you are fighting with her. You are stuck at that point. If you lie, then you could be facing additional charges, such as Obstruction of Justice, and the prosecutor will really drive home the point that you were lying to the police. On the other hand, if you choose to be candid and admit you have been fighting with your neighbor, the police will follow that angle until you say something terribly inconvenient, such, “I don’t like her at all, in fact, but I would never rob her.” Guess which part of the sentence the jury will hear.

If you never talk to the police at all, your relatively tame spat with your neighbor about her tree isn’t going to concern a jury. But if you couple that with an admission that you don’t like your neighbor, then the prosecutor has something to work with. Furthermore, if you mis-remember any details and later contradict yourself, regardless of how innocuous, then the prosecutor has a lot to build a case on.

It’s also really easy to contradict yourself. During my lunch break today, I went to a local takeout restaurant and tried to order a cappuccino. The proprietor looked at me somewhat accusatorily and asked, “have you been here before?” Before thinking about it I blurted out, “No.” His answer implied that I had no idea what I was doing, and my natural, amiable disposition caused me to answer incorrectly. A few seconds later I changed my answer to the correct answer, “Well, I’ve been here once, a year ago.” In conversations, people subtly change their answers all the time. If you let the police lull you into believing you are having a casual “conversation” with them, you too will change your answers.

For me, it was a low stress situation of ordering lunch. Imagine how wrong things could go during a police interrogation. Whichever answer a prosecutor prefers, that’s what the jury will hear. Or it could be advantageous for the prosecutor to make sure the jury hears all your answers and portray you as someone who can’t keep their story straight. Without any context of the surrounding conversation to the police, the job of the prosecutor will be easy. A clever prosecutor is halfway to a conviction.

Don’t talk to the police and make the job of a prosecutor easy.


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The Innocent Sometimes “Confess”

It’s one of the bigger frustrations for a criminal lawyer. No matter what the rest of the evidence says, most jurors cannot believe that innocent people confess to crimes they did not commit. The New York Times recently published a story on this subject. Oakland police suspected a 16-year old named Felix in a murder investigation. During interrogation, the police refused to let Felix talk to his mother, and questioned him until he finally cracked and started telling the police what he thought they wanted to hear. His confession was extremely poor—none of the details fit the crime scene—but he slowly incorporated subtle details the police gave him.

Felix was saved from having to explain his unfortunate confession to a jury because, as it turns out, he had an airtight alibi: on the day of the murder, Felix was locked in a juvenile detention facility. While Felix was spared, false confessions occur more often than the general public wants to admit. As The New York Times article goes on to say:

Psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill and mentally retarded, and suspects who are drunk or high. They are susceptible to suggestion, eager to please authority figures, disconnected from reality or unable to defer gratification. Children often think, as Felix did, that they will be jailed if they keep up their denials and will get to go home if they go along with interrogators. Mature adults of normal intelligence have also confessed falsely after being manipulated.

False confessions have figured in 24 percent of the approximately 289 convictions reversed by DNA evidence, according to the Innocence Project. Considering that DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions—and false confessions—surely exists.

The phenomenon of false confessions underscores a few things: 1) Police interrogation is serious business and it is very intimidating for the average citizen to endure. People who are susceptible to suggestions should never think about talking to the police alone. 2) The importance of getting a lawyer immediately cannot be overstated. Many people think they will get the police to see their point-of-view during an interrogation, but that isn’t a realistic expectation. The police interrogate suspects regularly who pretty much all say that they are innocent, but most suspects are novices at being interrogated. 3) Prospective jurors should be more skeptical of supposed confessions. The circumstances of a supposedly confession make a difference. But regardless of those circumstances, the police are going to show jurors the finished product: a tape recording or a written statement taken after many hours of continuous interrogation.


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Police Interrogation Is Not for Amateurs

The Supreme Court once again narrowed the Miranda rule with a decision released on Tuesday. In Howes v. Fields, the Court ruled that prisoner Randall Fields did not have to be given Miranda warnings, even though he was in jail for disorderly conduct when the police started interrogating him about his involvement in a possible sex crime. The Court, strangely enough, concluded that this interrogation was voluntary, even though Mr. Fields did not consent to the interview, he was not told he could remain silent, and he was denied his evening medications.

The Court said that it was reasonable for Mr. Fields to believe he could end the interview because the police told him that he was free to go back to his cell, but, as Mr. Fields testified, he did not believe them. Since the interrogation was involuntary from the beginning, I tend to believe Mr. Fields as to whether or not he could have really ended the interrogation. Obviously, the Supreme Court disagrees with me.

This Court decision underlies how important it is to request a lawyer anytime a police officer questions you. If it takes a lawyer to figure out whether or not you are actually “in custody,” I have no idea how a layperson is going to know. Despite what police officers may tell you, their goal is to get a confession. They are not there to help you, and they will work hard to avoid giving you a Miranda warning.

I have previously mentioned that there are a few questions you need to answer if a Utah or Salt Lake City police officer questions you. You need to provide your name and possibly some identification. Otherwise, invoke your right to silence and request a Utah State licensed lawyer familiar with criminal laws before you answer anything.


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Voluntary Police Questioning

Sometimes, police officers may want to question you before they arrest you. Such “voluntary” questioning can be problematic for a suspect because police do not need to give you a Miranda warning until arrest. However, the government will still use any incriminating statements made before arrest in court. The government does not have to provide an attorney for indigent individuals, and those that could afford an attorney might not realize they really should have one.

It’s a common misconception that anything said before a Miranda warning is inadmissible. For example, here in Utah, a friend of mine was with a group of people on a school playground late at night drinking alcohol. When someone spotted the police, everyone scattered. Some time later, an officer saw him on the street and asked him if he was among the people who had been drinking. My friend said that he was. When he represented himself in a Utah court, his admission was the key evidence against him. He tried to tell the judge that the officer never gave him a Miranda warning, but, of course, the judge didn’t care because he hadn’t been arrested when he said it. And my friend is the son of a (non-criminal) attorney.

It’s important that anyone detained by the police ask if they are free to leave. Police can only detain a suspect for a short time—not much more than the average traffic stop—before a judge will conclude that the suspect was in custody, and thus under arrest. When police officers say you are free to leave, you should take advantage of their offer. To circumvent Miranda, police will sometimes tell suspects that they are free to leave when they really aren’t. Judges are skeptical that questioning occurred under voluntary conditions, if, for example, the police arrest you immediately after you decide to leave. Courts examine whether the questioning constituted “custodial interrogation,” and the fact that someone was not formally arrested does not necessarily mean that police do not have to give Miranda warnings.

Suspects who haven’t been formally arrested need an attorney just as much as someone who has. As I previously mentioned, it is paramount that you speak to an attorney if you are in custody.