Why talk isn't cheap when you are accused of a crime

Often the hardest part of criminal defense is not undermining the physical evidence gathered by police or the testimony of prosecution witnesses. It's a client's own words.

Many defendants literally talk themselves into charges, prosecution and conviction for crimes where little or no evidence would otherwise exist.

Criminal defense clients do this despite some of the most famous words in the American legal canon: "You have the right to remain silent, and anything you say can and will be used against you in a court of law..."

Ever since the landmark 1966 U.S. Supreme Court case, the Miranda warning is to be given to any suspect before a police interrogation. Most of us have heard those words dozens of times on TV cop shows, which may actually be part of the problem. We fail to take those words seriously.

What you say to police could be the difference between being charged or going free. Worse, your words to police could make it difficult, if not impossible, for your attorney to effectively counter the prosecution's case.

The irresistible urge to talk

Why do suspects talk to police, even after receiving a Miranda warning? The reasons vary, but often come down to human nature. The impulse to explain ourselves and rationalize our actions is deeply imbedded from our childhood days. So is the belief that we can outsmart police.

Rarely does it end well.

Client admissions always hurt the defense. A defense attorney can attempt to suppress the statement, but it's an uphill battle. Often, police have defendants sign forms acknowledging that they received their Miranda warning and waived those rights. Police interviews are often videotaped or recorded. If you see a camera, assume it is running.

Police and detectives are skilled psychologists who can put a person at ease, move slowly from casual conversation to interrogation, and downplay the Miranda warning as a mere formality. Police will try to persuade you to disregard your rights in the name of "clearing things up."

Often, talkative clients get charged and prosecuted on the strength of their own statements, which may place them at a crime scene, show motive, show access to weapons or information, or lead to physical evidence cops may not otherwise have found.

Lying is no help, either. A client caught in a lie undercuts his credibility and emboldens law enforcement. Lies only make clients look guilty.

All of it only increases the likelihood of a guilty verdict or plea. Moreover, it robs defense attorneys of precious defense options - everything from negotiating charges and pleas to plotting trial strategy.

The right to an attorney

The second major right every suspect has under Miranda is the right to an attorney. This is the one and only time to speak up to police. When this right is exercised, the criminal defense attorney can have maximum benefit to the client.

When summoned, I meet with my client right away, urge silence to everyone but me, and insist on being present during any police interaction.

The sooner an attorney is brought onboard, the better and more effective our legal strategy will be. Charges can be negotiated downward, bail can be facilitated, and your release can be secured. And we will collaborate on the defense strategy going forward.

Prisons have ears

A criminal defense client must also remain silent in jail. Cellmates often exchange information to help themselves. If you share any details, a jailhouse snitch can weave facts with lies in order to implicate you and benefit them.

Worse, there can be audio/video recording devices in prison waiting areas, visitation rooms and on prison phones. Never discuss your case with family and friends while you are in jail or prison. Even writing letters is a bad idea. Expect them to be read by prison officials and turned over to law enforcement if incriminating. And never attempt to communicate with the alleged victim of the crime. You could face additional charges for witness tampering or intimidation.

Only when your attorney visits you in jail will a private room for legally privileged conversations be provided. This is the only time, place and occasion where discussing the case is acceptable.

So here's what the police officer's Miranda warning really means: You are a suspect in a crime. The officer sitting before you doesn't want to "clear things up." Instead, he believes there is evidence to arrest, and he's hoping your words will make that job easier.

You need to listen to that warning. Ask for an attorney and then remain silent. The police questioning will cease, and the attorney will begin working to secure both your release and ultimate exoneration. Otherwise, you risk boxing in your lawyers and being put away by your own words.


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