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NO, you shouldn’t give a statement to police!

October 30, 2018

By van der Veen, Hartshorn, Levin & Lindheim

Upon learning of charges, an innocent person accused of a crime probably has a gut reaction to start talking, go in for an interview, write an explanation on social media, start pointing fingers, or relay to police and detectives that this incident or occurrence was all a misunderstanding. “What could go wrong?” they might ask, followed by: “I didn’t do anything!”

Even worse, failure to start talking and proclaiming innocence can result in family members, loved ones, and the public, quickly turning against the person. Uneducated and naïve people also might assume that because someone “lawyered up” quickly they are guilty and have something to hide. After all, an innocent person would have nothing to hide and therefore nothing to fear when talking about it. Right?

Our criminal justice system doesn’t work like that. In fact, forcing a defendant to talk to prove innocence is so contrary to our justice system that there is an Amendment to the Constitution against it: the Fifth Amendment. Furthermore, a defendant doesn’t need to do anything to prove their innocence, the burden is on the government to prove that the defendant is guilty beyond a reasonable doubt. The presumption, in all cases and frequently forgotten, is that the defendant is innocent until proven guilty. The importance of this constitutional protection cannot be understated.

It is also not the government’s job to find out if you are innocent. Interrogation tactics used by detectives, police, and other government agents are suggestive and effective at getting what they want, which is a conviction. Techniques at getting a confession range from “good cop, bad cop” to other more subtle measures to build trust. Finally, many states do not require audio or visual recording for witness statements, so the exact circumstances and reactions of the person being interviewed can be hidden the jury.

Even if a complete confession is not elicited, prosecutors can later use the statements in a trial. They frequently twist words and supply inferences to statements in order to make the person appear guilty or culpable. “Maybe” in the right context and with the right string of questions can easily shift to “absolutely.” And words, even if innocent and innocuous at the time they were made, can appear devastating in front of jurors.

The result is twofold: one, talking won’t help you. No amount of talking about the event or explaining your actions to police will make them drop the charges. You cannot talk your way out of anything. Two, talking will only hurt youProsecutors will use the statements against you, even if innocently made and truthful.

In the future, here is a list of reasons why you shouldn’t talk to police or agree to give a statement:

  • The police aren’t looking for “your side of the story”;

A detective’s job isn’t to exonerate innocent people. It is to gather information for an eventual prosecution. Therefore, they aren’t looking for your side of the story – they are looking at whether they can pin the blame on you.

  • Talking to police will not help you;

Talking will not make them drop the charges. You cannot talk your way out of an affidavit of probable cause. The prosecution will also use your statements against you at trial.

  • Police are allowed to lie to you;

Police are allowed to lie to you during an interrogation. There is no constitutional rule against it, and only rarely has a conviction been overturned because a confession was deemed involuntary due to trickery in a police interrogation.

  • Police are allowed to prevent an attorney from speaking to you;

Until you state that you want your attorney, police do not need to provide one during an interrogation. In many jurisdictions, police can prevent a lawyer from speaking to their client before charges have been filed, and before the person asserts their rights.

  • Police do not need to provide a lawyer until there is a “clear and unambiguous” statement that you want a lawyer;

Merely remaining silent during an interrogation will not be enough to assert your 5th amendment rights. If that is the case, you shouldn’t ever risk it and proceed with a statement knowing the ball is outside your court. Davis v. United States (1994).

  • Your statement may or may not be recorded;

While many jurisdictions now require a recording of a confession in order for it to be admissible, many still do not. This is despite the advent of numerous technologies to make this easy, cheap, and affordable for police. An unrecorded statement is devastating in that the police can either maliciously or innocently convey your words in a way that is prejudicial to you.

  • You can plea guilty later;

Even if you are guilty, there is plenty of time to plea before trial (and sometimes, during trial). Don’t rush to give a statement that could make it worse for you at sentencing. If you are innocent, there is no choice but to take it to trial.

  • Police cannot give you deals or breaks, they gather information;

Don’t exchange a plea of guilty for nothing! Ending the case by pleading is a bargaining chip the defendant has in his corner, and that chip is a lot more valuable if the prosecution lacks evidence or does not have a statement from you.

  • A lie can appear even in a truthful statement;

Even in innocent and truthful statements, little “white lies” can appear that can draw your story into doubt. It is impossible for memory to be 100% perfect, and you should not give any opportunity to the prosecution to draw your story into doubt.

  • Interrogation techniques are sophisticated;

Police and detectives who interrogate suspects have attended classes, seminars, and training sessions in obtaining a confession (these sessions are often hosted by some top-flight organizations such as the FBI and the DOJ). Put bluntly: police are using sophisticated interrogation techniques that have been developed over decades. These techniques are designed to psychologically trick you into giving a confession.

  • Telling the same story twice is difficult;

Attempting to relay the same information from the same story is difficult, and practice and rehearsal of the same story is often ineffective at conveying your message: it sounds coached!

  • Incomplete information in the statement can be “filled” to seek a conviction;

Take this statement: “I was at Wawa at 6:00 PM and home watching the game at 8:00 PM.” The result? A two hour gap that jurors (and the prosecution) will use to say that you committed the crime within that gap.

  • A statement gives the police more information to convict you;

Any information you provide to police will be used to convict you, not exonerate you. Like a puzzle, police will do their jobs and attempt to match the evidence to your statement the best way possible.

  • A police officer or third party may be able to testify as to what you said to him/her;

A defendant is deemed a party-opponent, and therefore, what you say can be admitted in court as a hearsay exception. This means your statements can be relayed to the jury by a third party.

  • A statement exposes you to cross examination;

A statement and then subsequent testimony at trial exposes you to cross examination. The prosecutor can then impeach you with the statement if there are inconsistencies, even if those inconsistencies are meaningless.

  • Your answers can be exploited with conflicting testimony;

Suppose the following scenarios:

A: Witness “X” gives a statement to police that he thinks he saw you at Wawa last night at 8:30 PM. A crime took place two blocks from the Wawa at 9:00 PM. You do not give a statement. The result is that witness X is essentially useless: X could have been mistaken, who knows where you were at that time, and the crime took place at a different location and time.

B: Witness “X” gives a statement to police that he thinks he saw you at Wawa last night at 8:30 PM. A crime took place two blocks from the Wawa at 9:00 PM. You give a statement that you were at your Mom’s house at 8:30 PM, and so couldn’t have done it. The result is that witness X becomes a powerful witness for the prosecution: he now conflicts your testimony, draws doubt to your story, and therefore undermines your assertion that you are innocent.

  • You have no idea what you are doing.

Chances are, you didn’t go to law school and you aren’t a constitutional scholar. You aren’t an expert in resisting interrogation and you are definitely not a member of the jury adjudging your guilt. You are a liability to yourself.

If it doesn’t help you and it can only hurt you the correct answer is to never, under any circumstances, make a statement to police, talk about the incident in front of others, or proclaim your innocence on social media. But don’t just take it from me: take it from real examples where people were convicted based a statement made to police. These cases serve as a reminder that you should not give a statement if you are accused of a crime.

In Commonwealth v. DiGiambattista, a defendant was convicted of arson, in large part thanks to an unrecorded confession that he gave to police. 813 N.E.2d 516 (Ma. 2004). The defendant in that case voluntarily entered a police station to give a statement. In an effort to obtain a confession, police lied to him, told the defendant that he had been captured on videotape setting the fire, told him that they had corroborating witnesses that stated he set the fire, told him that admitting guilt now was not a big deal, suggested to him that he needed alcohol counseling, and also told him that he was the only suspect in the case. Throughout the interrogation, the police used sophisticated trickery, swapped detectives in and out of the room to build a relationship to the defendant, and preyed on defendant’s assumptions on the legal justice system.

The defendant in DiGiambattista eventually gave an unrecorded “confession” that was modified numerous times by police before the defendant adopted it. Subsequent investigation revealed that the defendant’s story was actually impossible: no forensic evidence related to the fire corroborated his claims and key portions of the confession were shown to have never happened. The Supreme Court of Massachusetts reversed the conviction and ordered a new trial on the ground that the confession was so fabricated that it should not have been introduced into evidence. Most criminal cases do not have the benefit of such a review.

In Washington v. Commonwealth of Virginia, a defendant was found guilty by jury of murder and rape of a nineteen (19) year old woman. 323 S.E.2d 577 (Va. 1984). He was later sentenced to death. He gave a statement to police that he had raped the victim, stabbed her, and told the officers that he left his shirt at the scene of the crime because it had bloodstains on it. While not recorded, a statement was signed. At trial, the defendant denied the statement and maintained he was tricked into signing it.

Subsequent investigation revealed that the defendant was mentally disabled, had an IQ of 69, and was functionally illiterate. Virginia’s highest court refused to reverse the conviction on the ground that the confession was involuntary. Years after the conviction, in 1993, DNA evidence revealed that defendant had no part in the crime and was not a contributor to any of the physical evidence obtained at the scene. His conviction for capital murder was absolutely pardoned in 2000.

In short, don’t make a statement. Call your Philadelphia criminal attorney and assert your constitutional rights.

Grant P. Bloomdahl graduated from Temple University School of Law in 2018. Throughout law school he worked at van der Veen, Hartshorn, Levin & Lindheim focusing on criminal defense cases. Also during law school, he interned for the Honorable Susan Piekes Gantman of the Superior Court of Pennsylvania, the Defender’s Association of Philadelphia, the Federal Defenders of the Eastern District of Pennsylvania, and the Foundation for Individual Rights in Education (FIRE).

He works primarily on Criminal Defense and Civil Rights cases.


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