Never "tell your story" to the Police

The Fifth Amendment's protection from self-incrimination is powerful, but only if you use it and remain silent when being questioned by Indiana or federal law enforcement authorities

We have all seen the dramatizations on television or in the movies. A couple of police officers will be interrogating a defendant. Sometimes they will take on the role of "good cop, bad cop." One will shout at the accused, make outlandish statements or even threaten bodily harm. The other will calm him down and perhaps send him out of the room.

The friendly, "good cop" will sit down, maybe give the accused a knowing look, as if to say "What was that all about?" He or she will then begin in a conversational tone, laying out some of the particulars of the crime, and will be very empathic. He or she will point out how it is entirely understandable how events transpired and why the accused acted as they did. He will then point out that he is just there to help the accused out and allow them to tell their story.

Even the smallest Sheriff's department here in Indiana knows most people want to "tell their story" and to be heard. They want to "explain" what happened, even if they were not invovled. The problem is, when it comes to speaking with the police, the "help" the interrogating officer wants to provide is a free ticket to a room maintained by the federal Bureau of Prisons or the Indiana Department of Corrections.

The Fifth Amendment

The Fifth Amendment to the U.S. Constitution provides the right against self-incrimination. The text of the clause relevant clause of the Amendment states, "nor shall be compelled in any criminal case to be a witness against himself."

In most criminal cases, this is an incredibly important "right," and it should be jealously guarded. The right, however, is tremendously fragile: a few wrong words to the police and it can be rendered worthless.

Why it is important

Its importance is due to the simple fact that no matter how appealing it may be to "tell your story," or how enticing the police promise of "helping" you may be, there is nothing you can say to a police officer that will "help" your case and innumerable things that you may say that can damage your defense.

But you are innocent?

Wrongful convictions sometimes involve confessions. Many people, unfamiliar with the criminal justice system, may shake their heads at the prospect of a person confessing to a crime they did not commit. To most, it is incomprehensible.

Prosecutors love this because even if you recant a confession, a prosecutor will play on that sense with the jury and it is very difficult to overcome the presumption by the jury that if you confessed once, you must be guilty.

These confessions often occur because police feel they have the correct suspect and they only need to tease out a confession to "solve" the crime. They may stop looking at alternatives and focus all of their resources on "making" the case against the accused.

This is met by the countervailing belief of an innocent defendant, who feels they have nothing to prove, as they do not; the burden in a criminal case is entirely on the prosecution, who must prove guilt beyond a reasonable doubt. And the jury is confused when the accused seems unrepentant; they presume the accused is guilty and the accused is offended because they know they are innocent.

The trouble occurs when the jury accepts the prosecution's theory of the case. This theory is greatly bolstered if the accused confesses, even if they later recant. And it is much easier to be manipulated down the line to a confession once you have agreed to speak to the police and engage in conversation.

You have the power to stop the interrogation

This is why it is essential to remain silent. Especially if you are innocent, nothing you say will convince the police who are interrogating you that you are innocent. If they are questioning you and you are in an interrogation room, the likelihood that the police have targeted you for prosecution is very high.

Some individuals confess after hours of interrogation, often while sleep deprived, simply to end the ordeal. But you can stop it sooner and much more safely. All you have to do is to say politely that the interrogation is over and you want to speak with an attorney. And then stop talking and do not speak again until your attorney arrives.

What about the Feds

In addition, you should always be very cautious whenever being interviewed by a federal officer on any matter. Whether from the FBI, DEA, ICE, IRS or even something seemingly less threatening as the U.S. Fish & Wildlife Service, speaking with any federal agent carries risk.

If you say something inadvertent or make a mistake and that statement is determined to be incorrect and perceived to be a lie, that lie becomes its own independent federal criminal offense, and prosecution for it may be worse that the underlying matter that prompted the initial investigation.