Criminal defense attorneys are generally hired after an individual is arrested and charged with a crime. But if a person is receiving phone calls from police or is under investigation for a crime, a lawyer may be able to prevent an arrest or charges before they happen.
If you suspect you could be in trouble, if you feel as if a police officer is being accusatory, or if you are questioned by the police but not charged with a crime, there are steps you can take to protect your rights.
Three Types of Police Questioning
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- Drug Enforcement Administration
- Dept. of the Treasure agents
- Secret Service
- Military Police A law enforcement officer’s obligation to explain an individual’s rights depends upon the situation and the nature of the officer’s questioning.
- A voluntary encounter is a situation in which a suspect is free to leave whenever he or she wishes to do so. This kind of questioning does not require any proof or a warrant and an officer is not required to explain an individual’s rights A situation ceases to be “voluntary” any time police indicate that a suspect cannot leave.
- A temporary detention takes place when police have “reasonable suspicion” to believe an offense has been committed and the person being questioned was involved. Innocent, common behaviors may constitute reasonable suspicion. Courts generally side with the police on this issue, however, law enforcement cannot detain someone based on nothing more than a hunch. An officer is not required to explain an individual’s rights when they are merely detained.
- If an officer has “probable cause” to believe that a suspect has committed a crime, he or she can make an arrest. This takes a situation beyond simple questioning to custody. Even if someone being arrested is completely innocent of a crime, law enforcement may facilitate an arrest if they have a reason to believe evidence links the suspect to a crime. Law enforcement officers must explain an individual’s rights when they are in custody and subject to questioning.
You can always ask an officer “Am I free to leave?” If the answer is yes, you can walk away. If the answer is no, you are most likely suspected of a crime but certainly are not required to answer any questions or provide a statement to the officer.
Various law enforcement agency officers may attempt to question you, including:
- FBI
- State/local law enforcement
- Joint Terrorism Task Force
- Homeland Security
- Naval Criminal Investigators
What Are My Rights When Questioned by the Police?
If the police contact you or ask you to come to the station, you have the right to remain silent under the law. In principle, you are not required to speak with law enforcement officers (or anybody else), even if you are unable to walk away from the officer, have been arrested, or are in jail.
You cannot be penalized for failing to respond to a question from law enforcement. The only person who might require an answer is a judge during a court case. It is a good idea to con
“You’re Not Under Arrest; We Just Want to Speak With You”
When police contact someone asking for answers to a few questions, it usually means they have reason to believe the person is connected to a crime. A common initial response to these kinds of inquiries is a desire to “clear the air” by voluntarily engaging in an interview. Statements made to the police, however innocent you believe them to be, can be used against you later.
You do not have to talk to the police if they call you.
It is likely that the police already have some kind of evidence or proof regarding the person’s involvement in the crime before contacting them for an interrogation. Even if someone being questioned is convinced of his or her innocence, police may have physical evidence or witness statements suggesting otherwise.
Anyone under suspicion of a crime has no obligation to speak to the police. “You have the right to remain silent” isn’t a meaningless expression – it’s a right. The line immediately after (“Anything you say can and will be used against you in a court of law.”) should discourage anyone from thinking of having a casual conversation with the police.
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Common Police Interrogation Tactics
When investigating a crime, police attempt to speak with as many people as possible in order to learn as much as they can about the crime. As discussed above, one of the people they often attempt to speak with is the suspect in the crime under investigation.
Investigators undergo intensive interview training to learn the best tactics for eliciting information from those they interview.
Common police interrogation tactics include:
- Good cop, bad cop: One cop uses abrasiveness with you while the other plays the part of a pleasant person, providing a sympathetic ear.
- Threats: If you don’t tell them what happened, they may threaten to investigate family members or associates.
- Coercion: They may tell you that talking to them will keep your loved ones out of trouble or that they can get a subpoena to force you to come in for questioning.
- Just trying to clear this up: An officer may tell you that you’re not in any trouble and that the officer is just trying “clear this up,” “figure this out,” or “get your side.” Make no mistake, the officer is trying to elicit information that can later be used against you.
One thing is certain: they will use whatever you say against you if they believe it would assist them to prove their case. You should always assert your right to stay silent and politely request an attorney. A lawyer can help to protect you against illegal police interrogations.
What Can Go Wrong?
Walking into a police station without a lawyer is taking an unnecessary risk. It’s impossible to know what the police intend to gain from a round of questioning. They might already have enough to make an arrest.
The following are just a few of the many things that could go wrong.
- You might admit facts that can prove guilt: Even if you’re innocent of a crime, something you say could come back to bite you in court. For example, you might admit to striking someone “in self-defense” or to simply being present when the incident in question occurred. Or, you may not realize you’re even being investigated and admit facts that put together the final pieces in an investigator’s puzzle. Telling the police any of these things will only help them build their case against you.
- You might accidentally lie: When being questioned by police, every single thing you say will be scrutinized. If you misspeak or accidentally say one name instead of the other, this can cause suspicion. Even if you immediately recognize and correct your error, it’s too late. The police have already made a note of it.
- You might be misunderstood: Even if you have an airtight alibi and a spotless criminal record, something you say can still be misunderstood or taken the wrong way. You probably don’t have a lot of practice in speaking to the police with unerring precision. This is a skill that attorneys have.
How to Legally Decline Answering Police Questions
Since it is within your constitutional rights to remain silent, you can gently and politely inform the officer that:
- I am asserting my right to remain silent.
- I’d like to speak with an attorney.
If you state those two things, the cops will relieve you of all pressure to talk. They are not permitted to ask you any further questions. If they keep putting pressure on you, lying to you, and telling you that talking to them is in your best interests, silence is golden.
Hiring an Attorney
In a situation like those listed above, a criminal defense attorney can step in to prevent charges from ever being filed. At the very least, an attorney can prevent a suspect from saying something incriminating in front of the police.
Some people might be concerned that hiring an attorney before charges are filed will make law enforcement suspicious. Even if an officer does get suspicious, there are understandable reasons why some people don’t want to talk to the police. Hiring an attorney is the best way to protect yourself from harm, even if you don’t think you have anything to worry about.
If you have been contacted by police for questioning, Berry Law can help you navigate through this process. Our team of attorneys can step in to defend you before you even speak a word. Contact us today for a consultation.
