By Paul Bergman
Updated March 11, 2016
The golden rule of criminal 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. Lawyers routinely advise that suspects politely decline to answer questions, at least until consulting with an attorney.
(For more, see Invoking Your Right to Remain Silent, which discusses the critical issue of invoking the right to silence and then remaining silent—as opposed to not saying anything at all.)
Providing False Information About Someone Else's Involvement
Lying to or misleading the police can quickly lead to trouble. For instance, when people intentionally assist a known criminal to avoid arrest or potential punishment, they can generally be charged as “accessories after the fact.” They may well be open toobstruction-of-justice charges, too. Obviously, whether to furnish information leading to the arrest of a relative or close friend is a personal decision. However, lawyers typically say that 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'm not available to 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.)
Distorted or Out-of-Context Statements
People who think that they may be police targets (perhaps because they have a criminal record) have reason to be especially careful about voluntarily talking to the police. One reason is that 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 can make an innocent remark seem incriminating.
(There can, however, be good reasons to share information with law enforcement—see this article on talking to the police.)
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.
Talk to a Pro
If the police want to talk to you and you have the chance, consider consulting an experienced criminal defense attorney. A knowledgeable attorney can not only advise you as to handle law enforcement, but also explain the ins and outs of the applicable law in your jurisdiction. For instance, a lawyer can explain to you the potential consequences—both legal and practical—of lying to or not cooperating with the police.