Standing with cold, stainless steel handcuffs around your wrists, sitting in the back of a police cruiser, or being stuck behind bars as you think about what you face to lose on the outside—EVERYTHING—are just a few thoughts running through your head as you decide whether you speak to the police or keep your mouth shut.
To make it more difficult, the police officer puts his hand on your shoulder, and assures you, if you cooperate, and answer his questions, he’ll let you go. So you think, just like the thousands arrested before you, “it sounds like he understands. He’s on my side. He really wants to help me.”
And, because you believe the officer when he says, “I don’t see a case here. I just need to hear your side of the story so I can write my report, and close the case,” you think it is a good idea to speak.
I mean, you haven’t done anything wrong and you definitely don’t want to sleep in a cold jail cell on a concrete slab with no blankets as corrections officers bark orders in the background when you think you can be under the covers in your own bed in your own home. So, in that life-altering moment, rather than thinking, “call my attorney, or shut my mouth,” you play Russian roulette with your freedom, and decide to explain your side of the story without an attorney present. Bad idea.
Without an attorney, it is hard to see that your words can be, and will be used as evidence against you, because to you, you didn’t do anything wrong. Without an attorney, you are not thinking about whether your actions give the officer probable cause. And without an attorney, you are definitely not thinking that if the officer had probable cause he would have arrested you already. It is hard to see the damage your words can do, because first, you have not been trained to examine the facts of a situation for the elements of a crime. And second, even if you were a trained attorney with experience in dissecting each set of circumstance for the elements of a crime, when you are dealing with a pressure packed situation where your freedom hangs in the balance, to say it is difficult to think and speak rationally when your freedom is on the line is an understatement.
The reality of the situation is this… if the officer wants a statement from you, a potential suspect, he is either 1) trying to gather additional evidence to help the State build a case against you, or 2) he is still investigating to see whether you did something wrong. Either way, nothing you say will help your cause in the long run.
While you undoubtedly will feel concerned that if you do not say anything, you will look guilty. Trust me, it is better to feel guilty in a constitutionally protected environment where your silence cannot be held against you, than to be convicted of a crime because your words made it impossible to defend you at trial.
Officers know that you want to tell your side of the story. In fact, police officers are trained to exploit it. The officer has a job to do. It is not to be your friend, and it is not to be your buddy. For him, it is to find out whether a crime has been committed. When you make a statement that risks being contradicted or misinterpreted, like it or not, that very statement will likely be what the officers use as probable cause to arrest you or what the government uses to try and convict you.
Remember, your “truth” of what happened does not necessarily conform to the officer’s “subjective” analysis of the facts. Trying to explain to an officer who is attempting to determine whether a crime has been committed when day-in and day-out he is trained to suspect the worst as he steps out on the streets is a risky game. You are not just competing with the other witnesses that the officer spoke to, but unfortunately, you are competing against something way more complicated…a lifetime of experience and unconscious bias that that particular officer is subconsciously relying upon to analyze your version of events. The truth, and what the officer perceives to be the truth are two very different things. As a result, the last thing you want are for your words to provide a reason to prosecute you because your words fit his version of the truth.
While there is a chance that you can talk yourself out of the situation, and there are even people that have survived the experience just to be arrested another day, that small possibility is not worth risking your present and future freedom. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.
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