By Criminal Defense Lawyer Jeremy Rosenthal
Declining to be interviewed by the police when you’re under investigation will probably upset them. But who cares? What are they going to do in retaliation — accuse you of a crime? Hint: they’re probably already accusing you of one and you’re the last one in on the secret.
Jails and prisons are full of people who gave statements to police when they were under investigation.
Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.
Won’t the Police Drop the Case if they Think I’m Innocent?
Of course that’s possible and I’m sure it happens. But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.
Police are not judges. They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over. They investigate crime. They do that by building a case element by element as defined by the Texas Penal Code. Often the only way they can make their case is through a statement of the accused.
By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges. So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.
Can’t I Convince them I’m Innocent?
Good luck with that.
Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation. We’re all raised thinking that people around us have open minds — but any trial lawyer that deals with juries on a regular basis can tell you how hard (or impossible) it can be to change a juror’s mind once they formulate an opinion. Think about how, when you debate sports, politics or religion with a person who doesn’t seem very committed to any position — yet will simply not be persuaded by anything you have to say. If anything, they tend to get more engrained in their position when challenged. Police reason no differently about cases they’ve made up their mind on.
We are all programmed from the time we’re little to respect authority and submit to the wishes of authority figures. Police (whether they think of it in these terms or not) absolutely use their authority status to manipulate a person into giving them information they’re not legally entitled to have. And to be clear — this is good police-work as deception is a legitimate law enforcement tactic.
Police know people will try to convince them of their innocence and they use it to their advantage in getting information.
Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?
Maybe yes and maybe no. At the very least you should consult a lawyer to hear their thoughts about your case. Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior. The State of Texas’ version could be to send you to prison for the rest of your life depending on the situation. Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.
In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.
*Jeremy F. Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer By Thomson Reuters.