The Fifth Amendment of the United States Constitution guarantees, among other things, that no one "shall be compelled in any criminal case to be a witness against himself." This is the basis for the familiar "Miranda Warning" that reminds a suspect that they have a right to remain silent. However, in my practice I have found that an alarming number of people being investigated as a suspect in a crime choose to talk to the police. Therefore, I give every one of my clients this simple piece of advice: Never talk to the police.
This advice is obviously very difficult to follow, but I believe it is crucial to getting a fair trial for the following reasons.
First, making a statement to the police can never help you. As discussed in Part 1 of this blog entry, the typical Miranda Warning explains that "anything you say can be used against you in a court of law." What a lot of suspects assume is that if they say something helpful, it will be introduced at trial in their favor. The reality is that those statements would be inadmissible hearsay and the prosecutor would object if the defense attorney attempted to have those statements admitted. Statements against the defendant's interests fall into an exception to the hearsay rules and would be allowed by the judge. Therefore, it doesn't make sense for an innocent person to speak to the police during an investigation, because the innocent person could not benefit from any statements made.
Secondly, there are too many ways that an innocuous statement can be used to convict the defendant. When being subjected to interrogation by the police for an extended amount of time, suspects tend to get to a point where they are just trying to get out of there. At that point, many suspects will tend to exaggerate otherwise truthful statements of innocence. What may start out as "I wasn't there when the crime occurred," becomes "I've never been there in my life." While the suspect may not have been at the scene of the crime when the crime was committed, the police may have a way to prove that the suspect was there on some other day. At that point, the suspect's credibility is gone and they appear to be guilty even though they may not be.
Next, a statement made to the police during questioning may not be presented to the jury at trial in the same manner as it was originally given. Often, an officer on the stand at trial will offer personal commentary about the suspect's statement. If the questioning was not videotaped (most interrogations are not videotaped) then the officer's commentary may be presented to the jury without contradiction. For example, the officer may tell the jury that he believed the suspect was nervous or that he seemed to be hiding something. Often, the officer will testify that the suspect was evasive or fidgety or that he was sarcastic with certain answers. This type of officer commentary can make an exculpatory statement seem like an admission of guilty.
Finally, a suspect in a police investigation should remain silent and refuse to talk to the police because even if they are guilty, there is no reason to admit guilt without receiving any benefit in return. A large number of criminal defendants eventually plead guilty to some offense. These defendants usually change their plea to guilty in return for a reduction of the charges or some consideration in terms of sentencing. A suspect who confesses to the police at the beginning of the process has given away their best bargaining chip and may get a more substantial sentence as a result.