Questioning By the Police

You have many rights with regard to being questioned by law enforcement officials, but you may not always want to assert them. Depending on the circumstances, you may be better served cooperating with police, even though you don't have to. Get some practical advice on your rights when questioned by the police and when to assert them.

When to Answer a Police Officer's Questions

Police officers may be as interested in clearing the innocent as in convicting the guilty. People can often clear their names as well as help the police find the real perpetrators by answering a few straightforward questions. For example, assume that Wally, a possible suspect, can demonstrate that “I was at dinner with Andre” at the moment a crime was committed. Wally both removes himself as a suspect and enables the police to concentrate their efforts elsewhere.

And legal rights aside, the truth on the street is that people often can make life easier for themselves by cooperating with police officers—as long as they don’t have a good reason not to. “Contempt of cop” has resulted in the arrest and even physical injury of more than one innocent person. When innocent people who are pulled over or questioned by police officers stand on their rights too forcefully, events can sometimes get out of control rather quickly.

Delay the Interview

People who are uncertain about whether to talk to a police officer needn’t feel trapped into giving an immediate “yes” or “no.” Being confronted by a police officer tends to make many people nervous and anxious, which renders them unable to give completely accurate answers. A good alternative is to delay the interview by saying something such as, “This is a bad time,” or, “I didn’t expect this so I’m a bit muddled now, please come back another time.” Among other things, delay provides an opportunity to consult with a lawyer, and perhaps to have the lawyer present during the interview, if the person ultimately decides to talk.

Recording the Interview

People who want to cooperate with police officers but fear that the police will distort their statements should insist that the police officers tape the conversation or prepare a written summary of it for the person to sign. The tape or summary minimizes a police officer’s opportunity to distort at a later time. But there is a potential downside to having the statement recorded. Once the words are on tape, a defendant will have to live with them if the case goes to trial, rather than argue that the police got it wrong.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

Guidelines for Talking to the Police

The golden rule of defense is that suspects who think that they may be implicated in a crime should keep their mouths tightly shut. Suspects all too frequently unwittingly reveal information that later can be used as evidence of guilt. The right to not incriminate oneself, guaranteed by the Fifth Amendment to the U.S. Constitution, is especially powerful in this situation, and a suspect should politely decline to answer questions, at least until consulting with an attorney.

Providing False Information About Someone Else's Involvement

When people lie to the police or other­wise intentionally assist a known criminal to avoid arrest, they may be charged as “accessories after the fact.” They can also be charged with obstruction of justice. Obviously, whether to furnish information leading to the arrest of a relative or close friend is a personal decision. However, a person who chooses not to do so should simply decline to answer an officer’s questions rather than lie. Rarely, if ever, would someone who simply declines to give information to a police officer qualify as an accessory after the fact.

Example: Cain comes running into his brother Abel’s house, and tells Abel that he, Cain, just robbed a market and that the police might be on his tail. A few minutes later, a police officer knocks on Abel’s door and asks him if Cain is in the house. Abel responds, “No, he left town permanently to go back east weeks ago.” Abel is subject to criminal prosecution as an accessory after the fact. By affirmatively misleading the police, he has aided Cain in avoiding arrest. To protect himself while not giving up his brother, Abel might have said, “I’m sorry, I can’t talk to you right now.” (Admittedly, the police might view such a response as a red flag that Cain is close at hand. Abel must rely on his own balancing of personal risk, private loyalty, and public duty.)

The Effect of Prior Contacts With the Police

People who think that they may be police targets (perhaps because they have a criminal record) should be especially careful about voluntarily talking to a police officer. Police officers sometimes distort people’s oral statements, either because the officers are lying or because they have heard only what they want to hear. By repeating in court only part of a person’s statement or changing a few words around, a police officer may make an innocent remark seem incriminating.

Example: A humorous example of police officer distortion occurred in the 1992 comedy film, My Cousin Vinny. In the film, a police officer questions a college student who has been arrested for killing a grocery store clerk. The stunned student, who at first thought that he had been arrested for shoplifting a can of tuna fish, repeats in a dazed, questioning voice, “I shot the clerk?” In court, however, the police officer makes it sound as if the student confessed to the murder by testifying that the student asserted, “I shot the clerk.” In real life, of course, police officer distortion is no laughing matter.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.