An actual exchange I recently had with an otherwise smart non-lawyer who is confused about whether he should talk to police. Reproduced with his permission.
SMART GUY: What if they say they’re interviewing you as a witness? Do they never take mere witnesses into the interrogation room? Genuinely curious, not challenging your expertise.
DAMON CHETSON: Why would you go into the interrogation room? Just curious.
SG: Are you asking me? The genuine answer is that I don’t know. I’ve never been in this situation. But I’m thinking the most likely scenario in which the police might talk to me — aside from being a victim — is that I’m a potential witness. So I’m wondering if being taken to the interrogation room is a giveaway that they’re really thinking of you as a suspect and not a witness.
DC: Let’s assume you’re going to be smart about it, and you’re not going to talk at all without a lawyer present. Problem solved.
But… the lines between a victim and a witness and a suspect and a charged person (aka defendant) are sometimes not clear, especially to investigators who were in nearly all cases not present for the criminal act and are trying to piece together what happened and who was responsible from conflicting bits of information. It’s rare that there’s video, and even if there were video, video can be misleading. I’m not sure what sort of scenario you’re thinking of. Also, let’s call it an “interview room” which is what it’s normally called, or just an office. Or just a room. Police officers aren’t magical. They are trying to piece together what happened.
So it is a conversation. But the conversation with a police officer isn’t an even-handed conversation. One party automatically has special powers (if a federal agent, particularly) or has special credibility. You don’t. By “you” I mean specifically, Smart Guy, and all other people who are not law enforcement officers in their official capacity.
SG: Okay, so is your advice to never answer questions from a police officer ever without a lawyer present? For example, say a burglary happens across the street. The police are talking to all the neighbors to see what they might have seen or heard. Should I refuse to talk without a lawyer? Genuinely asking.
DC: That would be my general advice. There could be a specific circumstance, but your example would not be specific enough.
SG: So what should I say? “I’m sorry, but I never talk to police without a lawyer”? Might that not paint a target on your back? Again, genuinely asking.
DC: Why would you be painting a target on your back? Here’s what I would say. I was told once by a lawyer never to talk to police. I just don’t talk to police. But I’d be happy to talk to you with him present or him on the phone. Give them my phone number – (919) 352-9411 – and have them call me. I’ll find out what’s up, then we can decide whether you should talk.
SG: Most people would probably just say, “Sorry, I didn’t see anything.” Or, if they did see something, “I saw a car I didn’t recognize parked across the street around 9pm.” Most people’s instinct is to be cooperative, especially if they genuinely had nothing to do with the event in question. Now maybe that instinct is wrong, but I think it’s real. So if you’re the one guy saying, “I won’t talk without a lawyer” when everyone else is trying to be helpful, I think that might make the cops take a closer look at you.
DC: Ok. What are we now talking about? The fact that MOST people talk? Or the fact that people should not talk? Also, while we’re here, can we search your home Mr. Whitman just to make sure that there’s nothing amiss?
Your example is a bad example for this reason: what if there was no burglary.
What if the neighbor was committing insurance fraud and filed a false report. What if, in his effort to make it look real, he starts pointing the figure at the Smart Guy who lives across the street. We can spin out a million scenarios, but that’s one that’s a problem for you, Smart Guy. And before you say, “that’s really far fetched,” note well: I’ve had a case like this.
Incidentally, if they do take a closer look at you, they will be doing it without you making statements that could get you in trouble. And if you aren’t involved, then you’ll probably be fine. And if you are involved, you’ll be better off not making statements. So it’s a win-win.