There’s an adage that says "two good times to keep your mouth shut are when swimming and late for dinner". To these, a third should be added: "when being questioned by the police without your lawyer present." I cannot tell you how many times I have had to deal with clients who thought they could talk their way out of trouble, who instead wound up talking their way into further trouble — and made a better case for the police — by not following that simple advice. Simply put, a criminal suspect, or someone who might be a suspect, SHOULD NEVER SPEAK WITH THE POLICE WITHOUT A LAWYER. The reasons for this are obvious. First, no matter what they tell you, the police are trying to rule you in as a suspect, not rule you out. Second, a lawyer will help you avoid saying something stupid or more importantly, can help you avoid incriminating yourself. Third, a lawyer can provide you with a chance at a "dry-run" to test the plausibility/viability of what you plan on saying, before you speak with the police. Fourth, a lawyer can help prevent the police from tricking you or bullying you into saying things you have no intention of saying. Fifth, a lawyer can talk you out of answering any question(s) that are not in your best interest to answer, or talk you out of speaking with the police at all. Sixth, a lawyer can do the talking for you, and in the process, use his or her own skill and experience to find out more about the potential evidence against you. And last, and sometimes most significantly, a lawyer will serve as a witness not only to what you said to the police but also to what the police said to you, these last being factors that are most often disputed or litigated post-arrest in the court room. Indeed, the ability to witness or memorialize what was actually said or promised (note well, despite what they tell you, most cops do not have the power or ability to make ultimate promises about charges or prosecution; unlike TV, in reality that’s really only something the DA can do.) is so important that the Massachusetts Supreme Judicial Court ruled in Commonwealth v. DiGiambattista, 442 Mass. 423, 447 (2004) that "although electronic recording of a defendant’s confession is not required in order for a confession to be admissible, a defendant whose interrogation has not been reliably preserved by means of a complete electronic recording should be entitled, on request, to a cautionary instruction concerning the use of such evidence". And why is this so? Because the police can lie, they can exaggerate, they can take things out of context, they can "put words into a suspect’s mouth", and they do often make promises they have no intention of keeping. Moreover, studies have shown (see Chicago Attorney Kathy Welter’s fine article "The Truth About Confessions") that one of the common traits found in false confessions is that the related police interrogation was "...only partially recorded or not recorded at all." Therefore, and obviously, one of the most effective ways to protect against being prosecuted on the basis of a false, coerced, involuntary, or fabricated confession, is to have both a lawyer present and to have it fully and completely recorded (and video-taped to make sure that nuance and body-language is also memorialized). However, if you want to be sure, and safe, then your very best option when arrested is to follow my advice: keep your mouth shut, say nothing at all, and keep insisting on your Constitutional right to speak with an attorney. And if you haven’t been arrested but have been invited to speak with the police, if your first instinct is not to immediately contact an attorney, you’re not paying attention!
If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828