This article might just as well be entitled, "What to do if you a suspect of a crime," or "What to do if you expect to be arrested." The short answer to all of these questions is: You have the right to remain silent. Use it. Say nothing.

Exercise your right to remain silent. Say nothing, but that doesn't mean "deny it." Don't deny having committed the crime. Don't admit having committed the crime. Just tell the police officer that your attorney has advised you not to answer any questions, and say nothing else to anyone until you talk to your lawyer.

Recently, I was giving this advice to a potential witness, and he said, "I'll just tell them that I don't know anything." This is wrong. For one thing, he did know something, and it would have been a lie to tell the police he didn't know anything. I may have wanted to have that witness testify at the trial. A competent prosecutor would have discredited the witness by showing that at one point he told the police he didn't know anything, and at trial he was trying to convince the jury that he did know something. Don't say anything. Tell the police that you are following the advice of counsel and refusing to answer their questions.

WHAT IF THE POLICE DON'T READ YOU YOUR RIGHTS?
You always have the right to remain silent. Do not be confused by the fact that sometimes the police do not read you your rights. Sometimes the police read you your rights, sometimes they don't. Sometimes they are required to do so, often they are not. But any time you are questioned by the police, whether you are under arrest, only detained, or you are just a witness, you always have the right to remain silent. Even if the police do not tell you so, you always have the right to remain silent. Until and unless a judge from a court of competent jurisdiction orders you to answer questions, you have the right to remain silent. Use it. Just politely tell the police that your lawyer told you that you were not to answer any questions. And understand that even if you are not asked a question, the prosecution can and will use anything you say, even to a friend or family member. A client of mine asserted his right to refuse to answer the police detective's question, but spontaneously asked whether he could get the death penalty. The court allowed his question to the police to be used as evidence against him. Say nothing.

DO NOT TALK TO A CLERGYMAN, A THERAPIST, OR YOUR SPOUSE.
Don't say anything to anyone except your lawyer. That means no one. You should not discuss your culpability with a clergyman, an advisor, a doctor, a therapist, a counselor or your spouse. All of these individuals can, and under certain circumstances, are required to testify as to what you said to them. In some circumstances, the very person upon whom you want to confide, such as a psychologist, counselor, etc., may be required by law to report what you say to the authorities, even if he is not questioned. The most common example is in child abuse or neglect situations, but that is not exclusive. If a person seeking treatment from a therapist admits that he has had inappropriate contact with a child, the therapist must report the conversation to the authorities. Clients often ask, "Can't a wife refuse to testify against her husband?" Not always. Not even usually. The bottom line is, say nothing to anyone except your lawyer.

ISN'T REFUSING TO ANSWER QUESTIONS ADMITTING GUILT?
My clients ask me if refusing to answer the police's questions isn't just going to convince the police that they have something to hide, and therefore they're guilty. "Won't they arrest me if I don't cooperate."

Sure, the police are going to think that you're guilty if you refuse to answer. And, yes, they may arrest you, although it is rare that they would arrest you only because you refused to cooperate. On the contrary, the police know that if you exercise your right to remain silent, their case against you just got weaker. Why else would they be so persistent? So the probability of your being arrested is actually less if you invoke your right to remain silent that if you cooperated with them. But it could happen.

But, yes, the police probably will think you're guilty, or at least that you have something to hide. So will the prosecutor. But I'm not worried about what the police think. The police cannot convict you. Neither can the prosecutor. In fact, neither can the judge. In a criminal case, the only way you can be found guilty is if a unanimous, twelve-person jury decides that the prosecution has proven you guilty beyond a reasonable doubt. And the jury only hears legally admissible evidence. What does that mean? It means that a jury will never hear that you refused to answer the police's questions. There is no evidentiary value in the exercise of a privilege. The right to remain silent is just that, a Constitutionally protected right. Because a jury might infer that you had something to hide if they knew you invoked your right to remain silent, they are not allowed to hear about it. That means that the fact that you refused to answer questions can never be used against you in court.

WHY NOT DENY IT?
Some of my clients ask, "I can understand why you tell me not to admit having committed the crime, but I didn't admit it. I denied it. What is so wrong about that?
Denying it is exactly what the police want you to do (second only to admitting it, and allowing them to wrap up their investigation without doing any more work.) By denying having committed the crime, you are deciding and disclosing exactly what your defense is at the worst possible time:

• Before you have had the opportunity to know the evidence against you,

• Before you have had the opportunity to calm down and think rationally, and

• Before you have consulted with a lawyer and know the law.

YOU HAVE NOT SEEN THE EVIDENCE YET
I always use the Mike Tyson example when I talk about this. You may remember that back in the early 1990's, Mike Tyson was accused of having raped a young woman in Indianapolis. The victim, a beauty pageant contestant, did not actually make the initial report until more than a day after the incident. She reported that Tyson had taken her to his hotel room and had raped her. She then returned to her hotel room which she shared with another contestant in the pageant. She thought about if for a day or so, and then reported it.

Obviously, by the time the police started to act on the report, there was not much physical evidence to be examined. She had already bathed, and underwear, clothing, towels and bed linens had all been laundered. It got worse for the prosecutors. They discovered a potentially devastating piece of evidence, and cleverly, they decided to subpoena Mr. Tyson himself to testify before a grand jury. Of course, as the target of the investigation, Tyson had the right to invoke his 5th Amendment rights, but like most accused criminals, Tyson was eager to clear his name.

Had I been his lawyer, I would have told him that he had the right to remain silent. Use it. Do not assist the prosecution. The only time he would tell his version of what happened would be if he was needed to testify, as the last witness for the defense. That would have been after the prosecution had divulged all of its evidence, after they had presented their case to the jury, and before they had the opportunity to hear his side of the story. By that time, they would have no time to investigate and refute his testimony.

In one of the worst cases of professional malpractice imaginable, Tyson's lawyer allowed him to testify that he had sex with the young lady, but that she had fully consented.

Tyson and his lawyer had fallen into a horrible trap. Tyson convicted himself. The problem that the prosecution had discovered early in its investigation consisted of a statement which the victim's roommate attributed to her. According to the room-mate, as soon as the victim returned to her hotel room on the night of the incident, she exclaimed, "That son of a bitch tried to rape me!" Now, why the victim said "tried" is unknown. Maybe the complaining witness mistakenly inserted the word in the excitement of the moment, or as a result of all the trauma she had suffered. Or maybe she didn't even say it. Maybe the roommate heard it wrong. Nevertheless, when the prosecutor saw that statement, he knew that any capable criminal defense lawyer could have won the case without even calling one witness. He could hear the defense's closing argument vividly.

"Of course Mr. Tyson 'tried' to have sex with her. He probably tried everything he could think of to persuade her to have sex with him. Of course we know that he didn't attempt to rape her, because he could have raped her if he had tried. But short of forcing her, which he could easily have done, he undoubtedly tried everything he could think of to have his way with her.

There was no evidence of their ever having had sex. No physical evidence. No evidence of bodily fluids, no soiled undergarments or bed linens, and no witnesses. Nothing. And there was the long delay in the alleged victim's having reported the alleged crime. Why?
Obviously, they never had sex, because if they had, she wouldn't have said that he tried to rape her. If he forced himself on her, she would have said that he raped her. The young lady is obviously confused. The first, and most important element of the charge of rape, the act of sexual intercourse, is unproven. There is no need to go any further."

But Mr. Tyson's lawyer never got that opportunity. By the time he learned what was contained in the police reports -- after the grand jury testimony -- Tyson, with his lawyer by his side, had already convicted himself. He admitted the first element of the charge, sexual intercourse. So the blockbuster statement attributed to the victim by her roommate, that she heard the victim say "tried," turned out to be a dud. A non-issue.

All because a defendant thought that if he denied having committed the crime, he was going to help himself. Remember this true story if you ever think of waiving your right to remain silent and denying your involvement in a crime.

YOU ARE TOO EMOTIONAL
That is only one example of how a person's denial can assist the prosecution. Another example can be found in a case of mine, another rape case, wherein a client panicked and spoke too soon, denying some-thing easily proven.

While on a business trip to the desert, a man called a local escort service for some female company. A girl came to his room, and eventually they had sex together. There was a dispute as to the amount of the compensation, and upon returning to the escort service's office, the girl reported that she had been raped. The police were skeptical of her story, because they know that escorts from that service do engage in sex for money. Her story was that she was there only to strip, but as she was doing so, he picked her up and raped her.

So to get his version of what happened, the police went unannounced to his hotel room. They woke him up, and asked him if he had called an escort service earlier in the evening. The married man, overcome by fear and guilt, panicked and lied to the police. He denied having called an escort service, and claimed that no one had been there that evening except for himself. This, of course, was easily disproved, because of physical evidence and phone records. But the man had completely destroyed his own credibility, and added credence to the prostitute's story.

Had he said nothing, and asked to remain silent until he had known the charges and the evidence against him, it is almost certain that no charges would ever have been brought against him. All the police wanted was to see if the prostitute's story was believable. When he denied her having been there, all of a sudden they had what they felt was a good case against him. In other words, not despite his denial, but because of it, the case became much stronger against him, and he was ultimately forced to explain to a jury why he lied when approached by the police.

Luckily, our investigation led to other escorts from the same service testifying that the complaining witness was not to be believed, that she had told them in confidence that she had lied about the incident because the client had not tipped her generously enough, and she was going to find a way to get his money from him one way or the other. We won that case, but it was terrifying to have to wait for hours for the jury to finish their deliberations and finally acquit my client.

YOU DO NOT KNOW THE LAW
An example of this factor involves a landlord who was accused of threatening and terrorizing a deadbeat tenant. The landlord agreed to undergo questioning because he felt he had nothing to hide. According to him, not only had he not threatened to kill the tenant and his family, he acted in a perfectly legal and appropriate to try to collect the debt. He said that he told the tenant that he would not report the tenant to the police if he would just pay him the money he owed him.

Unfortunately for the landlord, by waiving his right to remain silent and telling his story, he confessed to having committed the crime of extortion. Yes, he denied committing the terrorist threats, but he admitted threatening to accuse a person of a crime unless he was given money, and that constitutes the crime of extortion (or blackmail).
Had the landlord consulted with a lawyer before answering the questions of the police, he would not have said anything, and would not have convicted himself, which is ultimately exactly what he did.

WHY WARN (PREPARE) THE PROSECUTION OF YOUR DEFENSE?
The most important procedural right of the defense is that we get to go last. The prosecution has to put its entire case on before we have to present any evidence. They have to disclose their entire case to us before trial. And with a few exceptions, the defense has to tell them nothing. Why would any defendant want to waive this very important procedural advantage? In other words, why tip them off, just so they can mold their case to fit any weaknesses in your defense? It is the defense's right to mold its case around the weaknesses in the prosecution's case. And why give the police time to investigate and possibly cast doubt on your story? Let them hear it for the first time when they are the least ready to do so, at the same time the jury hears it, and just before the case is submitted to the jury for a verdict.

ARE THE POLICE ALLOWED TO MONITOR PHONE CALLS?
Yes, in California and most other states, the police may monitor and tape record private telephone conversations. If you are ever concerned that you might be accused of a crime (especially a sex crime), do not discuss the incident over the telephone. When an alleged victim of a sex crime reports the incident to the police, they often set up a "pretext" phone call. For example, they may have the alleged victim call a suspect and want to discuss their having had sex in the past. She may tell him that she is in pain, or angry or disappointed with him for what he did, or say that she needs something, such as money for medical expenses. These calls are called pretext calls, set up, monitored and tape recorded by the police, who hope that an unsuspecting person will unwittingly admit to the commission of the crime.

If you ever feel you may be the target of a pretext phone call, you should not accept the call. If you are already on the phone with an accuser, you should say that you need to talk with your lawyer before you say anything. Anything. And then you should hang up and call your lawyer immediately.

LEGALITY OF JAILHOUSE SNITCHES
If you are in jail, never discuss your case with anyone, especially an inmate whom you do not know. Unscrupulous inmates will always sound very sympathetic, and claim to want to hear what you say about your case. But jail is the very worst place to make friends. Jailhouse snitches make deals, and offer to sell your statements to the prosecutors on their cases. This reprehensible conduct is allowed by law. And remember, telephone calls made from the jail and conversations during jail visits are tape recorded and monitored, even those to your spouse and family. Evidence of these conversations is also admissible against you in court.

SHOULD YOU EVER APOLOGIZE?
Usually not, at least not until the case is completely resolved. Be sure to ask your lawyer about this if you are in doubt.

Not long ago in a local courthouse, a female lawyer abruptly left a judge's chamber after the jurist allegedly groped, kissed and fondled her against her will. This judge, who has had twenty years' experience handling a criminal calendar, presumably knows the difference between provable cases and those which result in acquittals. But in response to her rebuking his advances, and without thinking of the consequences, the judge actually called the young lady intending to apologize, and when he did not get through to her, he left voice messages on her phone pleading for her not to report him to the authorities!

This is more than just an example of how stupid I have always known this judge to be. It is an example of how one must remember the advice this article is giving you. Had the judge calmly analyzed the situation, he would have realized that the young lady's word against his would not likely have been enough to convict him of anything. There were no witnesses, and no physical evidence. He should have said nothing. Instead, he convicted himself when he apologized to her and asked her not to report the incident.
Yes, even experienced legal minds can slip up sometimes. It is difficult to remember to remain silent. Just remember, when the police ask you if you are willing to answer their questions, JUST SAY NO!

© Copyright 2001