You’re Right to Remain Silent

Suppose a detective left his business card at your place of employment.  He wants to have an informal meeting to ask you some questions about a pending investigation.  What should you do?  Any competent attorney will advise that you should not make any statements to the police.  You should invoke your constitutional right to remain silent and say, “I will not make any statement unless and until I have a lawyer with me.”

Many people find this advice confusing or worse.  “If I don’t answer questions, won’t that making me look bad?” , “Won’t it make me look like I have something to hide?” Here is why asserting your constitutional right to remain silent is essential.

 – Suppose you talk –

Suppose you have that informal meeting with the detective.  The detective asks you 20 questions.  Nineteen of your answers are helpful to you, but one is harmful.  You are then charged with a crime.

When your case goes to trial, you have a problem with your statement to the detective.  The 19 answers that you gave to the detective that are helpful to your defense are not admissible at trial.  This is because there is a rule that precludes self-serving statements at trial.  That rule states that if you wish to introduce statements at trial that are in your favor, you must do so by testifying at trial.  (Whether you testify at trial is a decision you will have to make with advice from your lawyer.)  So, unless you testify at trial, the statements you made that are helpful to your case will not be entered into evidence.

But the one statement that you made that hurt your case is admissible at trial.  The prosecutor can introduce that statement even if you do not testify.  So all the jury ultimately hears is the one statement that is bad for you.

Simply put: if you answer questions, the only statements you made that are admissible as evidence are the ones that hurt you.  Except in unusual circumstances, which only a lawyer would be able to identify, you cannot help yourself by talking to the police.

 -Won’t I look bad if I refuse?-

But doesn’t it make me look like I have something to hide if I don’t answer questions?  That is most people’s immediate reaction to the idea of refusing to answer questions.  And, indeed, if a jury were to actually hear that you refused to answer questions, it would make you look bad.  But the jury would never hear that you refused to answer questions.  The Constitution gives you the right to remain silent.  In order to protect that right, the Constitution says that if you invoke your right to remain silent, the fact that you invoked your right is not evidence that can be used against you at trial.  The jury never hears that you refused.

There is only one safe course for someone who is being questioned by the police.  Regardless of the type of offense, from DUI to a sex offense to first degree murder, you should never answer questions unless and until you have a lawyer with you.  Remember: Your constitutional right is to remain silent. Just say, “I will not make any statement unless and until I have a lawyer with me.”

By: Michael J. Bloom, Esq.

 

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