Normally, I don’t handle criminal cases. Nonetheless, the topic of this blog is how to protect yourself; how to protect your assets, how to protect your estate, how to avoid scams. One thing that you need to consider is what to do if you find yourself the target of, or a suspect in, a criminal investigation.
If you think you may be the target or a suspect in a criminal case, the two things you need to do are first, shut up. Do not talk to the police. The second thing you need to do is talk to a lawyer, immediately. Do not think you can handle this on your own; do not think that you can talk your way out of it, do not think that if you simply explain your side of the story the police will take your word for it and drop the matter. You need to stop talking to the police immediately, and you need to talk to an attorney immediately; preferably an attorney who regularly handles criminal cases.
I handle primarily estate planning and probate cases, and some real estate and business matters. Nonetheless, occasionally I will get a phone call from an existing or past client to the effect that the police want to talk to the client; or that the police have asked the client to ‘come down to the station’ so they can interview them. This is a red flag; the client is probably a suspect in a criminal investigation at this point. My advice to the client is “do not talk to the police, do not cooperate with the police, if the police ask to search something, tell them no, if the police ask you to show them something, refuse, and you need to talk to a criminal attorney” at which point I will usually give the client the name and phone number of several attorneys who handle criminal matters.
How can you become the target of a criminal investigation? Several ways. First, someone lies to the police. They accuse you of doing something that you did not do. It may be an accusation that you assaulted them; it may be an accusation that you took something of theirs; it may be an accusation that you did something to them, and that they didn’t consent to it; specifically, some sort of sexual encounter.
Frequently, when contacted by the police, the suspect is willing, even eager, to ‘tell his side of the story’. To tell the police what ‘really’ happened. Frankly, this is usually a mistake. You cannot lie to the police, you cannot tell them that this didn’t happen at all if there is an element of truth in what you are accused of; but you can tell them, “I am not speaking to you and I want to contact an attorney”. And then call a lawyer.
Let me give a specific, if hypothetical example; one that I’ve seen in my own practice. Client meets someone and one thing leads to another; maybe there is some drinking involved, maybe not, but that person goes home with client and they have sexual relations. Sometime later, maybe the next day, maybe weeks or months later, the person decides that for whatever reason, the sexual encounter was not consensual; they were too drunk, too high, to consent, that they said no, and were taken advantage of, that they were forced into it. The details may vary, but they decide that they did not consent. And they make a police report. Now, the longer the period between the sexual encounter and the report, the less likely there is to be any sort of medical or physical evidence of this. At this point, all the police have is the say-so of the person reporting it.
The police go and talk to the other person, the client, about this; they’ll mention that so and so said that they had sex with the client, and that it was forced or they were too drunk to know what they were doing or they said no, essentially that it was rape. At that point the client should shut up. Period. They should tell the police that they are not talking to the police, and they are calling a lawyer right now, and they need to call a lawyer right then and there. Under no circumstances should they try to “tell their side of the story”.
Why shouldn’t the client try to ‘tell their side of the story’? If they’re innocent they have nothing to fear, they have nothing to worry about, they’re telling the truth and the police will believe them, right? No, this is wrong. The police can believe part of a story, and disbelieve another part of the story. In the example I use here, if the clients story is “yes, we met at a bar, we both had a couple of drinks, we went to my house, she was a little tipsy but not actually drunk, she knew what she was doing and we went to bed” then you have just given the police pretty much everything they need to send you to jail. How? Because prior to your talking to them, all the police had was the other persons word for it; that this happened at all; that she had met you, that you had gone anywhere, that you had any sort of sexual relations whatsoever. Remember, this may be days or weeks after it happened; there is likely no physical evidence available; all the police have, or had, is her word for it. You, by talking to them, have confirmed that 1) you met her, 2) that she had some drinks 3) that you went home with her and 4) that you had sexual relations with her. The only difference between your story and her story is that she said she was very drunk and said no; and you said she only had a couple of drinks and said yes: the police can take both your words on the parts that you agree on and take her word for it on the part where you disagree. You have just confirmed to the police most of what they need to arrest you and they can believe the other person for the part you haven’t confirmed.
This is essential to remember; where the police have two sides of a story, they can pick and choose whose side and what parts to believe; and once you’ve admitted to some of it, the police don’t have to prove that part of the story because you’ve just admitted it. This happens all the time, not just in sexual crimes; it can happen in assault and batteries; two people meet, one person later claims that the other person hit them, or tried to hit them, or threatened to hit them, or threatened harm to them, the police talk to the client, and they tell the police that’s not what happened, I met the person but I was polite, I didn’t hit them or threaten them, or, yes, I touched them but it was because they tripped and were going to fall and I grabbed their arm to help them; or, no, he grabbed me first and I went to remove his hand from my arm; they’ve just given the police half of what they need to arrest you; you’ve just admitted that you met the person and maybe even touched them. If you hadn’t admitted to that the police would have to prove it and all they would have is the word of the person making the complaint.
Second, here’s another reason not to talk to the police; maybe you did in fact do something wrong, or maybe you did something that might have been wrong. The natural tendency of telling your side of the story is to ‘shade’ the truth; to put a ‘spin’ on it, to make you look good. Sometimes it involves what people would call ‘white lies’, little lies that really don’t matter; sometimes it may be what you believe to be true, but for whatever reason, you’re misremembering it, or your not being in full possession of the facts, you are simply wrong about it. This is human nature, this is human memory, how people remember things isn’t necessarily the way it happened. Under most circumstances, this is not a big deal; if a married couple has different memories about how they first met, it’s a funny story. Or if someone misremembers what the wife said to pick up at the grocery store, no one is going to go to jail over this. But if you misremember, or misstate, or tell a white lie to the police, you can be in really big trouble. This is the thing; people don’t understand that when you’re talking to the police, this is not a normal conversation. Even if the police haven’t Mirandized you, even if they haven’t told you that “anything you say can be used against you”, anything you say to them can still be used against you. The police may even emphasize that you are talking to them voluntarily or that ‘you’re free to leave’. This doesn’t mean that anything you say isn’t going to be used by them; it simply means that the police don’t have to warn you that anything you say can be used by them.
The police generally don’t have to tell you your Miranda rights unless you are in ‘custody’; what ‘custody’ means is very complicated, but very generally, unless the police have you in handcuffs, or in a squad car, or in a jail cell, or tell you that you can’t leave, you are not in custody. The way to tell if you are in custody is flat out ask them, “Am I free to leave?” If they say you are free to leave, then leave. If they tell you that you are not free to leave, or if they start hemming and hawing about why would you want to leave, or if they stop you from leaving, you are in custody. At which point you should shut up and tell them you want a lawyer. And you should tell them in just those words: I want a lawyer, and I want a lawyer now. And do not talk to them until you talk to a lawyer. If you say something like “maybe I need a lawyer” or “do you think I should get a lawyer” or “I want to think about getting a lawyer” then you haven’t told them you want a lawyer; and they can continue to question you. You need to tell them unambiguously, flat out, that you want a lawyer and that you want one now and that you are not talking to them until you get a lawyer.
So, the police want to talk to you, and you tell them your side of the story; in telling the police your side of the story, you tell them something wrong; either deliberately, a little lie, or even by mistake; you misremember, you are not in possession of all the facts, what is the worst that can happen?
Three bad things, from pretty bad to terrible.
First, once you tell them something it becomes almost impossible to change your story; If you later remember what actually happened, or if you remember some detail and try to change or add to your story, the police are likely to treat it as though you deliberately lied to them, whether or not you did. You are probably going to get a question about “were you lying then or are you lying now”?
Second; if you try to change your story, or if the police can show you were wrong, either in a deliberate lie or even an honest mistake, they do not have to believe that it was a small lie or an honest mistake; they are likely to use this to argue that if you lied about one thing, you lied about other things; those other things being more relevant, more serious facts that might send you to jail.
Third; even if you did nothing wrong; even if you committed no criminal act and the police wind up showing that you committed no underlying criminal act; you can be prosecuted, and sent to jail, for lying to the police; just for lying to the police. Remember, Martha Stewart was investigated and cleared for stock manipulation; but she was convicted and sentenced to prison for lying to investigators. If Martha Stewart hadn’t talked to the investigators, they could not have convicted her of lying to them.
Simply talking to the police can get you in trouble; and under the worst circumstances, you can go to jail for lying to them.
And, if the police ask you to “come down to the station”, voluntarily, then you should refuse to do so, call a lawyer then and there, and shut up. Do not explain to them why you do not want to talk to them, do not talk to them at all. Call a lawyer. This is a very good sign that they are just about ready to arrest you; they ask you to come down voluntarily; they ask you questions, and then when you’re ready to leave, they decide then to arrest you and give you your Miranda rights then, after you’re talked to them and told them everything they want.
If you are arrested, once again, do not talk to the police. People will be arrested, handcuffed and placed in the patrol car; at that point, shut up. Period. Do not argue with the police, do not protest that you are innocent, do not try to explain your side of the story; anything you say at that point can be used against you. If you are arrested, there is nothing you can say that will get you ‘unarrested’ at that point.
I mean this. Even though I don’t handle criminal cases, I will tell you that you should not talk to the police if you think you may be the target of a criminal investigation. Simply tell the police, politely, you are not talking to them; and shut up and call a lawyer. Immediately.
How can you tell if you are the ‘target’ of a criminal investigation? That can be tough; sometimes you are simply a witness, sometimes you are the person who initially called the police, and in some cases you might initially be a witness or a complainant, but turn into a suspect. If the police are coming to you and asking for “your side of the story” then you might be a suspect; they’re trying to confirm some aspects of what someone else told them. Once again, a talk with the police is not a normal conversation; everything, and anything, you say, may have legal consequences. Call an attorney and simply be quiet.
Lastly, if the police come to your door and ask to come in, you should refuse. If they have a warrant they are going to come in; and under some other circumstances they may come in anyway; but you should still politely, non violently, object to their entry and tell them they do not have your permission. And you should shut up at that point. And call a lawyer. Do not invite them in; and if they come in, do not talk to them; To be blunt, today’s news articles dealing with Ibragim Todashev, the martial arts expert shot by the FBI in Orlando yesterday, had the FBI and Massachusetts investigators in his house for two hours, and under questioning by them admitted to taking part in three murders; at which point Todashev attacked an FBI agent and was shot by the agent in self defense, illustrates this point. I have no sympathy for Todashev, he admitted to a triple murder and then tried to attack an FBI agent, nonetheless, from a lawyers perspective, Todashev did not have to allow the FBI agents in his house, and he did not have to talk to the police at all. From a legal perspective, Todashev would have been better off refusing them entry, refusing to talk to them, and calling a lawyer then and there. And he would have been within his rights doing so. Instead, he spent two hours talking to them and wound up confessing to a triple murder. Obviously, this is an extraordinarily serious case, but it illustrates the problem with talking to the police; at some point you may wind up confessing to something even if you didn’t intend to when the conversation started.
Once again, I do realize this is a bit different than my usual posts, but sometimes people get caught up in criminal investigations; and people get hurt in these things. You need to know what to do to try to protect yourself. I concentrate on estate planning and probate in The Villages, Florida, and do not usually handle criminal cases but I do think that people need to be aware of their basic rights in order to protect themselves.
Yesterday, a Supreme Court case was handed down dealing with the Fifth amendment right not to incirminate yourself; Salinas v. Texas, which I am unable to find a good link to yet on the internet, but essentially the court decided that if the police are questioning someone and they suddenly refuse to answer a particular question, the prosecutor can point out that silence to a jury and let the jury come to the conclusion that the answer would have been incriminating UNLESS the person being interviewed explicitly says I refuse to answer that because the answer might incriminate me. In other words, if you are answering the police’s questions and refuse to answer a particular question, you should say “I won’t answer that because the answer might incriminate me”. You need to explicitly reference your fifth amendment rights. And what the court doesn’t say, but is still very good advice, is you should get a lawyer right away. And you probably should not have been talking to the police anyway.
Here’s link to Salinas v. Texas that I discuss in the comment above:
Salinas v. Texas
Here is better link to case