Having practiced criminal defense since 1988, I’ve developed some solid insights over the years based not only on my experience, but also that of my colleagues. Generally, in my opinion there are very few “absolutes” when it comes to evaluating decisions to be made in interacting with law enforcement. I made this point in an earlier post, “The Breath Test Dilemma”. For example, when a client comes to a lawyer in the wake of the police attempting to track them down for an interview, the lawyer has two options in terms of advice – A. You will not talk to the police; and B. I will prepare you, we will go together, and you will allow yourself to be interviewed. Now, I’ve been in this situation many times. The easiest route, and I think the route that a lot of lawyers reflexively adopt, is option A. After all, a suspect can always tell their story, and a lawyer will almost never be second-guessed for advising a client to remain silent.
The unfortunate truth is that once one is charged with a crime, even if ultimately exonerated, one can suffer adverse consequences in the form of publicity and/or a criminal record, just to name two. So, indeed there are those rare occasions when it may be in a client’s best interest to cooperate with a police investigation. I’ve been involved in matters in which, had my client not cooperated by giving an interview (with my representation), charges would have been filed. Sure, ultimately the client may well have been exonerated, but only after suffering the adverse consequences of being charged, not to mention the additional stress and expense of defending.
Having said that, based on my experience and observations, if suspected of wrongdoing one should NEVER — I repeat NEVER — speak to the police without having a lawyer present (or at least having consulted one). I generally have very good relationships with and a lot of respect for our local law enforcement, so I hope they won’t be upset with me. Lately, I’ve seen too many instances where the decision to go ahead and talk to police without legal counsel has led to unfortunate results. I’m not talking about situations where someone has confessed to a crime, either. In fact, it’s more often the case that, in an effort to deny involvement, someone makes statements that later turn out to be harmful because they are either riddled with inconsistencies or are inconsistent with their testimony at trial. I would estimate that around 90% of people either arrested or otherwise investigated by police do, in fact, cooperate and make statements.
Society is involved in a constant tug-of-war between individual rights and governmental authority. We have the “right to remain silent”. Anything we say “can and will be used against us in a court of law”. These cautions are part of the “Miranda” warnings that have to given to any suspect in custody prior to questioning. They’re worth remembering, however, in any circumstance where one is in the uncomfortable position of having to account for themselves to the police.