Recently, S. Lorén Trull dove into The Dueling Sides of “Just Comply” and the struggle between standing up to police brutality and making it home alive. The “comply, then complain” advice is something defense attorneys like me often tell our clients, but we realize it’s a difficult thing to do. People of color are faced with accepting an immediate injustice because it’s meaningless to vindicate your constitutional rights from a pine box.
While there is little I can add to that particular debate, one area where you should stand firm in your rights is in talking with police – in short, don’t.
A couple caveats here at the beginning:
(i) Each state and city has its own set of statutes and rules, so keep in mind your mileage may vary. If you’ve got an attorney of your own and he/she disagrees with what I have here, listen to them instead.
(ii) Whenever possible, record your interactions with the police on a smartphone. Cameras have helped reshape the balance of power between citizens and police, and it was only through live video that the killers of people like Walter Scott have been exposed. The CopBlock website has a number of sample apps and the ACLU has been producing “Mobile Justice” apps, by state, that are available for iOS and Android. Most of these apps allow you to record video discreetly while uploading it in real-time to a remote server, as a way of ensuring the police don’t try to erase your phone.
So back to (not) talking to the police. Unless you are providing ID about yourself, or you happen to be a witness to a crime you know with 110% certainty you have no involvement in, I tell my clients to never ever talk with the police.
So back to (not) talking to the police. Unless you are providing ID about yourself, or you happen to be a witness to a crime you know with 110% certainty you have no involvement in, I tell my clients to never ever talk with the police.
The reason is simple: if police are questioning you, they are gathering evidence. Gathering evidence is an officer’s main job. They go through extensive training on convincing suspects to talk, and the more you talk the more likely you will intentionally or accidentally say something incriminating.
And literally nothing you say can help you.
It all goes back to rules. If you find yourself facing trial for something, from drug possession to a simple speeding ticket, you will have two sides in a trial: the Prosecution/Government, and the Defense (you).
Those trials are governed by fairly detailed and complex Rules of Criminal Procedure and Rules of Evidence. Those rules vary widely by state, and the federal government has its own batch, but every single one of them includes a ban on what is called “hearsay.”
What is hearsay? Think of the telephone game you played in kindergarten. One person whispers “chair” to the person next to them, that person passes on the word to the person next to them, and so on down the line until the last person in line announces the original word was “unicorn.”
Refusing to talk is easy: just blame your lawyer, even if you don’t have one yet.
The legalese definition of hearsay is “an out of court statement offered for the truth of the matter asserted.” For example, if you wanted to testify at trial on a speeding ticket “I told the officer ‘I wasn’t speeding!’,” the “I wasn’t speeding” part would be hearsay – it was a statement, you made it outside of the courtroom (so not under an oath to tell the truth), and you’re offering it for the truth as evidence you weren’t actually speeding.
That makes it hearsay. The District Attorney will object, the judge will sustain the objection, and your statement will get stricken from the transcript of the court proceedings like it never happened.
Now every state has lots of exception to the hearsay rule, and the biggest in criminal cases is what is known as an “admission by a party opponent.” Basically whoever is opposite you in a case can testify to what you have said; anyone testifying for “the State of North Carolina” can speak on anything they claim left the Defendant’s lips. So using our previous example about that speeding trial, if the officer had proof that you were speeding, he would likely testify that you claimed you weren’t as a way of proving that you’re a liar.
The kicker is that, in criminal trials, that hearsay exception only works in one direction. The officer can testify on behalf of the government about what you said, but you cannot in turn testify about what the officer said to you, because he/she is not “the State.” Anything you say outside of court can, quite literally, only end up hurting you.
Now you’re grown. You’ve seen Law & Order reruns. “What about Miranda?” you might ask. And Miranda matters, but only a little bit.
In oversimplified terms, our courts decided years ago that statements made during custodial interrogation were special. That’s because, throughout most of our history as a country, police would often physically beat suspects until they confessed. So in Miranda v. Arizona, the US Supreme Court ruled that the only way to ensure your Fifth Amendment rights against self-incrimination were protected was deciding statements made during custodial interrogation cannot be used at trial unless the suspect has an opportunity to have an attorney present.
If you noticed the pieces to the hearsay puzzle a few paragraphs ago, you probably notice some here too: Miranda only applies to statements, made while you are in custody, in response to questioning by police, that the Government wants to use at trial.
You have a God-given, Constitution-enshrined right to remain silent: use it.
If you haven’t been detained, you’re not “in custody” – so anything you say is admissible. If you were detained but later told you’re free to leave, same deal. If police don’t ask you a single question and you just randomly decide to talk because you don’t like sitting in silence, that’s admissible too.
And everything you say, with or without Miranda, can be used for non-trial purposes. That includes giving police insight on where to search for evidence, making statements that are exaggerated or mistaken or otherwise incorrect that bolster the police’s view that you’re dishonest, and so on. One of the standard tactics police use to get you to talk is deliberately not reading your Miranda rights, saying something to the effect of “you haven’t been Mirandized so nothing you say is admissible anyway,” and then they use the beans you spill to convict you anyway.
That’s because, in the vast majority of cases, your testimony isn’t needed to convict you. Drug cases almost exclusively come down to an officer’s testimony alone, and 95% of all cases will plead out because police overcharge and the system is structured to coerce plea deals.
Refusing to talk is easy: just blame your lawyer, even if you don’t have one yet. If the police want to know where you’re going: “My attorney told me not to answer any questions.” If they want to know who your attorney is: “My attorney told me not to answer any questions.” If they say they’ll talk to the DA for you, or make things harder for you if you don’t talk, or ask anything at all beyond name/license/registration: “My attorney told me not to answer any questions.”
Your attorney will thank you for not making their job harder. You have a God-given, Constitution-enshrined right to remain silent: use it.
