Yes, you read it right. This is indeed a top ten list of reasons for voluntarily speaking to criminal investigators, with no lawyer present. At least, these are ten of the many reasons that have been advanced to this writer over the years by unwary law enforcement personnel to explain their decisions to chat away with investigators rather than resort to those whose only mission is to protect them – their lawyers:
- “I didn’t want the investigators to think I was guilty.”
- “I used to work patrol with one of the detectives.”
- “They said they just wanted to get my side of the story.”
- “They promised that they weren’t there to arrest me.”
- “They made it seem like I’d be arrested if I didn’t speak to them.”
- “They told me at this point I was just a witness.”
- ”I didn’t think I had done anything wrong, and felt I had nothing to hide.”
- “I knew I was going to talk to IA anyway, so I thought I’d get it over with.”
- “It didn’t seem like a big enough deal to try to bother a lawyer over the weekend.”
- “The investigators had already been having coffee with my wife for an hour before I got home, and I felt it would have been rude to throw them out.”
It is easy to read these and think, “Those guys were stupid, that would never happen to me,” yet all of the above explanations were offered, in some instances multiple times, by numerous experienced, highly sophisticated cops. So how does this happen, and how does one guard against it?
Identifying the Threat
Preliminarily, it is critical to understand the nature of the threat posed to you when confronted by a criminal investigator. At stake may be your liberty, your career, your financial future, even your relationships with your loved ones. You will be greeted by a tandem of highly trained and skillful inquisitors, who will have been preparing for days, weeks or even months for the opportunity to seek your statement. They will have spoken to other witnesses, and maybe have another team seeking to simultaneously interview your family members. They will have already exhaustively reviewed any available emails, texts, phone records, GPS, etc., about a matter that might well be in the distant past, and you have long since forgotten. You cannot underestimate the ability of investigators to gather information before approaching you. Moreover, you should not overlook the legal resources and tactical advantages available to them, which include, in the legally proper course of executing their duties, lying to you. Throughout your career, you will have contemplated situations in advance to better face them in a real life conflict; addressing criminal investigators requires similar mental preparation.
Anticipating How You Will Be Approached
You will rarely be given advance notice of contact by criminal investigators, for their own strategic reasons. They will choose the time and place for an interview to speak with you, when you are unprepared and unrepresented. They will have audio recording devices, while you probably will not even contemplate retrieving your own because you are psychologically overwhelmed by their arrival. Of course, the investigators’ visit may not be their first effort to get you to talk; frequently they will have initiated a “cool call” with the cooperation of an alleged victim to obtain your response on a recorded phone line, a tactic that also preys upon your dearth of intellectual and emotional preparation.
The contact with investigators will likely be orchestrated with the cooperation of one’s own agency. Frequently, targeted personnel are summoned to their station with a bogus excuse or little or no explanation, only to find criminal investigators waiting to speak with them. While the target will not be told he must speak with the investigators, subtle pressure to do so may be inferred by the target from the surrounding circumstances. Often one of the investigators is someone well known to the target, maybe a friend or former supervisor, and chosen precisely for that reason.
They will casually begin by apologetically asking if you can “help us out” by answering “just a few questions,” so that “we can get your side of the story.” They will provide minimal information to pique your curiosity to cause your participation. In short, they will attempt to obtain a statement from you in many of the same ways you do in the field, while recording every word.
Recognizing Your Emotional Vulnerability
The predictable trauma of a law enforcement officer contemplating potential incarceration is another weapon in the investigators’ arsenal. As the target agonizes over thoughts of jail, bail, publicity, job loss, personal and financial upheaval, and not being rude to members of his profession, the investigators can bring artificial calm to the room by advising him that they are not there to arrest him or, conversely, they may keep emphasizing that the absence of his side of the story makes things problematic, intimating that an arrest may ensue without it. Either way, the pressure to talk becomes palpable, even if that pressure is ethically and legally applied. Most of us do not make the best decisions in the midst of a building emotional crisis, often resulting in the divulging of words better left unsaid.
Time and again, law enforcement personnel, apparently reluctant to say “No!” to their peers, respond with statements of uncertainty and ambiguity, asking: “Do I need an attorney? Or a union rep? I think maybe I should talk to a lawyer, what do you think? Can you tell me more so I can decide?” Apart from the fact that the investigators have no more business advising you on legal issues than you do in counseling suspects who ask you similar questions, none of these statements is an explicit assertion of one’s Miranda rights, and they invite further discussion likely to result in an expressed or implied waiver of the right to remain silent. Think about it: when you question a suspect in the field, and the person waives his rights, don’t you say, “What an idiot!” to yourself? Why should you do the same thing?
Anticipating the Consequences of Any Statement You May Give
Most law enforcement personnel confronted by criminal investigators fail to reflect on the legal ramifications giving of a voluntary statement. “Voluntary” in this context is precisely what it sounds like: giving away something for free. What can be done with your voluntary statement? Anything! Apart from any restrictions agencies place upon themselves, the statements can be disseminated at will, to media, spouses, anyone, because they were provided without limitation. Worse still, if you make a voluntary statement and don’t record it, neither you nor your later lawyer might get access to it until charges are filed and discovery proceeds. Thus, your reward for volunteering your statement may be that your lawyer may have no way of knowing exactly what you said to investigators for months, which may seriously undermine the efforts of your legal team to formulate a proper defense.
Maintaining Silence is Preferable to Lying
Frequently, targeted law enforcement personnel are so consumed by the horror of potential criminal allegations that they lose all perspective, adopt a belligerent posture, fueled by misplaced ego, and somehow conclude they can, without preparation and at a moment’s notice, concoct an airtight defense that will send the investigators on their way. This choice never seems to go well. Lying to criminal investigators may seriously impact any defense you might later reasonably assert in defense of a prosecution, in addition to constituting a crime in itself. Furthermore, it is guaranteed to be a lethal blow to your employment. You would never conceive of engaging in any serious law enforcement activity without a plan, a calculated assessment of the risk factors and options. Acting defensively out of fear and panic is the antithesis of a plan.
Since they spend careers on their own particular side of the proverbial fence, law enforcement personnel tend to lose sight of the fact that it is the prosecution’s burden to prove each element of a criminal offense beyond a reasonable doubt; a suspect – guilty or not – has nothing to prove. If the case has one accuser and no other witnesses, any inaccurate statement by an unwitting target could tip the balance, a result avoidable by mere silence.
There is a timeless saying among lawyers: “Better to keep one’s mouth shut and be thought guilty, than to open it and remove all doubt.”
The Remedy: Have a Simple Plan to Refuse to Say a Word Without Your Lawyer
So, what should you do if contacted by criminal investigators seeking information from you? Simply, directly and emphatically, you should respond, “I want a lawyer right now; I’m not speaking to you without a lawyer.” There is no reason to explain yourself. Repeat if necessary. There is no reason to apologize. If they planned on arresting you already, the arrest will be made; if not, they will leave. While your natural curiosity may cause you to ask them all kinds of questions, avoid doing so; get their business cards and have your lawyer do it.
As you may have now surmised, there are NO good reasons to give a voluntary statement to criminal investigators without a lawyer, which to most all reading this, is a service already paid for through a legal defense fund.
This is not to say that there is never a time to voluntarily speak to criminal investigators; the caveat is to never do so without your lawyer. A lawyer may investigate the matter, narrow the issues, establish ground rules and conclude with the client that there is a benefit to making a voluntary statement, but this is never a determination a law enforcement client should make all alone.
No one reading this article should interpret it as a disparagement of criminal investigators. In fact, it is quite the opposite. Those chosen to investigate other law enforcement personnel are well-trained and task-oriented, despite performing the unsavory obligation to focus on the conduct of a peer. It is precisely because of their advanced knowledge of the rules and how to work within them that the unwitting cop is at a hopeless disadvantage in engaging them alone, without the legal counsel that is readily available. You would never gamble your physical safety on a reckless plan in the field; don’t do it with your liberty.
About the Author
William J. Hadden (Bill) is a partner at Rains Lucia Stern St. Phalle & Silver. For over a quarter century, Bill has handled high profile criminal and administrative cases for countless public safety members. He frequently lectures and writes about prominent legal issues pertaining to them.
