Communicating With Law Enforcement
What Are Some Of The Most Common Mistakes That You Find People Make When It Comes To Encounters With Law Enforcement, Whether On The Street Or In Their Home, Before And After An Arrest?
One of the most common mistakes people make when it comes to encounters with law enforcement is arguing with them. I’m not saying that you have to agree with everything they say, but keep in mind that they are doing their jobs and conducting their investigation as they speak with you. Their intention is mostly to corroborate information that has caused them to speak to you in the first place. Arguing is only going to further cement the adversarial positioning at the outset of that conversation – less is more. It’s common for people to say too much. Generally, people regret wrongdoing, but that may lead them to admit far too much. This may be an attempt to assuage some guilt, or form of demonstrative penance in hope of leniency from the police officer. While these are real emotions and perfectly understandable, it’s best to deal with those emotions at another time when not interacting with law enforcement.
It’s difficult, but it’s important to thread that needle between respect to the police and not inculpating yourself by grandiose admissions. Be respectful, and at the same time, don’t make your situation worse than it is – it is your Constitutional right to remain silent without harming your defense case.
Prior To Being Arrested And Charged With A Crime, How Do People Generally Find Out They’re Under Investigation By Law Enforcement?
A person’s first encounter with the police usually starts an investigation occurring simultaneously with the issuance of a ticket or an arrest. For instance, if it’s a vehicular offense, the motorist’s initial contact with the police is when they’re pulled over. Similarly, if it’s a DWI situation, the first contact from the police is when he or she engages in a stop of that vehicle. If it’s a non-vehicular misdemeanor crime, the police usually are responding to a call, this could be a number of things, such as, a domestic violence incident or some other sort of public disturbance. Scenarios involving more than one person may be ongoing, volatile, and usually have multiple police officers responding and the ultimate arrest of at least one party.
In other types of offenses, the police may have been contacted by a complainant sometime after the fact and it could be hours or even days from the incident. It is likely, in such a situation, that the police are contacted via telephone, invited to the station to report it, police question them, get their background, and a description of what allegedly occurred. If the alleged facts make out a case, the police will write up a complainant’s statement, ask them to review it and sign it, and it’s then in law enforcement’s hands as to how they’re going to proceed.
If a complainant is inclined to file a report against someone, they may give some indication ahead of time that they may be going to the police. The accused will not know if or when they’re going to be contacted by the police; placing them in an uncomfortable state of limbo.
When the police do contact the accused party, it can be in person or by telephone. If the complainant knows the accused, they would give the phone number(s) to the police. I often see local police departments reach out and call the person and say “I’d like to ask you some questions,” or, “do you know why I’m calling?” They might get some information from the accused party over the phone in the form of an acknowledgment or admission. Conversely, it might only be the first step of a longer process of getting them to come into the station and deep dive as to their version of what happened.
In other instances, the police might arrive at their door without notice and ask them some questions and put them on the spot. How a case is handled depends upon the police department and their preferences as to how to proceed in each such case.
Should I Hire An Attorney Early On If I Suspect I May Be Arrested? Does That Make Me Look Guilty?
Hiring an attorney can make you look guilty to the police, but to them, you likely already seem guilty. They will have the intake information from the initial interview with the Complainant and a signed sworn statement, so what they’re really looking for from the accused is corroboration via admissions. For that reason, of course, it would be wise to get counsel ahead of time. The investigation is more about corroboration of the allegations than it is hearing your side of the story and may be better off not participating in that conversation. Invoking your own Fifth Amendment Right against self-incrimination is difficult when it’s just you and the police, so an attorney can help keep you from inculpating yourself and jeopardizing your defense.
If you suspect that you might be arrested soon, it’s best to consult with an attorney to help prepare you for the inevitable phone call from the police. You don’t want to find yourself on the spot. In the narrow window of time between a question and answer, there’s little room to improvise. You have to be prepared to say something like “I have counsel and I’d rather have them present during any questioning,” or, “I have an attorney, could you please contact them and speak with them.” It takes one off the front burner, so to speak. It also allows the attorney to reach out to the investigator and have a conversation to see what the allegations are before a client would go in for questioning or processing.
If the police are essentially set on filing charges and are clearly looking to make their case stronger, then it’s best to have the attorney say “Look, I’ll produce them, but I’m not going to let them answer any questions.” Or, coordinate to bring them to the police station on a court night ahead of time, let the police process them, and then have them appear in front of the judge to be heard on bail or be released on their own recognizance. That way, they don’t have to spend time in jail.
If Law Enforcement Is Investigating, Should I Ever Meet With Or Speak To Them? What About Cooperating With Law Enforcement To Provide Any Information I May Have On Who And What Happened?
The general answer would be do not go and speak with the police without counsel if you are the target of an investigation. It depends on the circumstances of a particular situation. If the person to be questioned by the police is alleged to have committed some wrongdoing, the said accused party knows whether they participated or not to any extent and to make that honest assessment. Is this something that they are tangentially involved in or were they directly involved? These are very serious decisions when the person is involved to any extent – and they should be deconstructed by an attorney to help chart the best course of action.
In my experience, a person who has been invited to some extent by the police to come in and speak to them about a situation has been named by someone else who is already part of the overall conduct or focus of the investigation. They’ve already been named to some extent as a participant and are generally not going to be named as a witness to something. Instead, the point of the interview by the police is to try to get some harmful admission or conversation that will ultimately be used against them. If they are a participant, it’s best to consult with an attorney first because anything you say “can and will be used against you in a court of law.”
That is essentially what the Miranda warning is referring to, however, police don’t necessarily recite it to you when you’re going in for an interview since you’re going in on your own volition. If you’re not in custody nor under arrest, they may not believe they are required to give you that warning. But, be advised, anything you say to them is going to be used against you nonetheless. Following an arrest, it is rare to get notices including any favorable statements made by an accused or defendant. They seldom seem to record the favorable stuff. The benign statements tend to be glossed over in trying to capture those few words that can be construed as an admission of complicity. Once they have the admission they seek, the conversation is over. The one or two sentences the police will attribute to you is an impossibly short abbreviation of a 20-30 minute conversation taken out of context or incomplete (e.g., “when did you last drink” is a question often omitted as a follow-up question to “what did you drink?”).
I Spoke With Law Enforcement Before And After My Arrest. I Did Not Have An Attorney With Me, Surely, They Can’t Use Any Of That Against Me?
Au contraire – if you talk to law enforcement without an attorney, they can and will use anything you say against you. The police may characterize that conversation as voluntarily and without duress. They’ll likely say you had the opportunity to contact counsel ahead of time but didn’t, or you had the opportunity to decline to answer any questions but didn’t. If you make the decision to have a conversation with the police without consulting a lawyer, you will likely regret it later when you see the net result of that decision. The statements to be used against you will be set forth in a notice of admissions served to the defendant or counsel at the arraignment or within 15 days of said arraignment.
How Common Is It For People To Give Police A Statement On The Spot?
It’s very common for people to give the police a statement on the spot. They feel compelled to say something, and the police are trained to elicit a response from you. The interview is framed in a way to ask open-ended questions and people may feel awkward with silence, but that is basically a snare.
Sometimes the party being questioned will feel compelled to fill that void and will end up giving all the statements that the police are seeking. I’m not saying that in a judgmental way – that’s just a common reaction I believe is premised on the fact that we are generally good-natured people. We try to do the right thing, but still make mistakes and people regret it. The accused may be looking for mitigation of charges or to alleviate that sense of guilt by fully answering all the questions that the police ask. However, from law enforcement’s position they have someone who made a complaint, they’ve spoken with the accused, and admissions were made. They will often communicate with the district attorney’s office about drafting and filing charges, if any.
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