Talking to the Police – the Do’s and Don’ts

Police questioning, whether before or after an arrest, can be aggressive, deceptive, and intrusive. Therefore, don’t talk to police without an attorney present, even if you are innocent or believe you are not a suspect. You can always give them information after you have talked to an attorney, but you cannot go back and protect your rights after you have talked to the police without your attorney present. While you are not obligated to speak with the police, it does not mean you should be rude or confrontational. Politely decline to answer any questions without the presence of an attorney and move on.

“You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney . . . ” Anyone who has watched more than a few episodes of one of the many police dramas on television probably knows these words well. Too many, however, simply don’t heed these words when they find themselves questioning by law enforcement. If you answer questions, even seemingly innocuous ones, from the police without an attorney present, you can find yourself in a lot of trouble.

Voluntary vs. Involuntary

Police have the right to stop you and ask you questions at any time. If you are not a suspect in a crime, however, these interactions are completely voluntary on your part, though officers will often use tactics designed to make you feel otherwise. If you are approached by police and questioned, the first thing you should ask is, “Am I free to go?” They may try to avoid answering that question to “encourage” you to continue talking with them, but firmly and politely repeat the question until you get a clear answer. If you are not a suspect, police must let you go and cannot force you to speak with them.

However, if you are not free to go, you are a suspect and should immediately inform them that you are invoking your right to remain silent and to have an attorney present. Police must immediately stop all questioning until your attorney is present. Note that when you are a suspect, police may ask you for your name, address, date of birth, and identification without an attorney present, and you must provide these four pieces of information only. In certain situations, failure to provide this information when requested can constitute its own criminal offense. See Ind. Code § 34-28-5-3.5.

Don’t Consent to a Search

Don’t consent to a warrantless search by police without first speaking with an attorney. This includes your purse or bag, car, home, and phone. With very few exceptions, police may not search any of these without a warrant from a judge or your consent. Speaking with an experienced attorney can help you understand and safeguard your rights.

But I’m Innocent

“If you didn’t do anything wrong, just answer a few questions for us so we can clear all this up.” This is a common phrase police use to get people they suspect of a crime to answer questions without an attorney present. Don’t fall for it. Police officers are humans, and like most humans, police officers may make up their minds about things before they have full information. Also, like most humans, police officers may, consciously or subconsciously, look for evidence that supports their conclusions or overlook anything that contradicts them. This is why we have the right to refrain from answering questions from the police without an attorney present.
You may think every word you say proves your innocence, but you will often not see the whole picture of the officer’s investigation. Just because you hear your words as proof of innocence does not mean that the officer or anyone else will hear them the same. Even the most seemingly-innocent answer may be used as evidence to convict you of a crime you did not commit.

I’m Not a Suspect

Police often use deceptive interrogation techniques to get you to answer their questions unknowingly. Police may tell you that you are not a suspect to entice you to let your guard down, or that they just need your account of the events in question to make a case against someone else. Police can, and often will, tell you anything necessary to get you to talk to them alone for two important reasons.
First, it is legal for the police to lie to you. They are under zero legal obligation to be honest with you about whether you are a suspect, unless you force them to be by not answering questions voluntarily. Second, police know that if they tell you that you are a suspect and you ask for an attorney, they must stop talking to you immediately.

False Confessions Happen…Quite Often

Police interrogators are very good at their jobs. They can get you to confess to things you have done, and often to things you have not. Everyone thinks they would never confess to a crime they didn’t commit, but research indicates otherwise. According to the National Registry of Exonerations, 27% of all exonerated murderers were in prison because of a false confession. And once you confess, even under duress, no police officer or jury is going to believe you are not guilty. Police interrogators are trained with many psychological tactics designed to entice people to tell them what they want to hear. Unfortunately, these tactics work so well that they often entice people to tell the police what they want to hear even if it is not true.

Always Ask for an Attorney

Talking with the police can be one of the most stressful encounters you can have. Even when you are innocent, police encounters are nerve-wracking. Don’t let your nerves or aggressive police interrogation tactics get you to confess to something you did not do. So, if police question you, ask if you are free to leave, and leave if you are. If you are not free to leave, politely invoke your right to remain silent and to have an attorney present. If you find yourself being questioned by police, the experienced criminal law attorneys at McNeelyLaw are always available to help you protect your rights.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.