Miranda warnings are something everyone knows from the cops and lawyers TV shows – from every crime-drama where someone has been arrested. “You have the right to remain silent.… You have the right to an attorney.” So why do so many people – even educated people who watch these shows – fail to keep their mouths shut when questioned by the police without an attorney?
Most people who talk to the police without a lawyer do so thinking they can avoid being arrested. In other words, they think they are going to help themselves and avoid being jailed. This is a fallacy. Having the lawyer present won’t create a greater risk of being arrested. There is either evidence to arrest a suspect or there isn’t, and unfortunately, anything a suspect says “can and will be used against” that person. In other words, virtually nothing a suspect would say would actually help that person.
The same is true after the arrest in either trying to avoid prosecution or getting a plea offer. Again, nothing a suspect says say can help him or her generally, if law enforcement and the prosecutor want to move forward, and more than likely, what the suspect says, without the advice of counsel, will not be helpful. Anyone who is a suspect should simply get an attorney and keep one’s mouth closed.
There is generally no value in what the police say when they tell a suspect that “this moment” is the only chance he or she will have to “set the record straight.” Typically, once in the interrogation-room, the police will offer the suspect an opportunity to “tell your side of the story.” But that invitation is an invitation to a masquerade ball, where the cops are wearing their friendly sheeps’ masks, all the while being wolves underneath.
For example, a murder suspect was told he had the right to an attorney, but he gave statements to the police and district attorney without a lawyer present. In making his statements, he described the inside of the apartment where the murder was alleged to have occurred – placing himself inside the apartment, when there turned out to be no DNA or other physical evidence that he was actually inside the apartment. More critically, he actually put himself in the middle of the violence by saying that, perhaps when he was “moving” the body, the victim may have “bumped” his head, all the while that he and an accomplice were robbing the victim. In essence, the suspect confessed to felony-murder. (When a person dies in the course of a robbery, he or she can be convicted of felony-murder in New York.) The only question was whether, having placed himself at the scene, he could also have reasonably been found to have intended to kill the person. Ultimately, the jury found him guilty of first degree murder. Had he never given a statement, the statement could not have been used against him in court.
It is important to remember, as a matter of law, that helpful statements by defendants are not admissible in court generally, as they are hearsay statements that usually have no exception to the general prohibition against the admission of hearsay evidence. Evidence Law 101 is clear: Hearsay is an out of court statement offered for its truth and is generally not admissible absent an exception to the “hearsay rule.”
Hearsay is generally prohibited because a suspect must be able to confront his or her accusers, and the prosecutor and defense counsel must have an opportunity to challenge an out-of-court statement’s veracity. That is true even if it is a defendant’s helpful statement – especially if he or she does not testify. (Of course, we all know that it is a criminal client’s right to remain completely silent. A defendant cannot be compelled to take the stand in his own defense.)
In contrast, a statement made by a defendant against penal interest is admissible as an exception to the hearsay rule. So if a suspect says, “I didn’t mean to do it,” the confession could come into evidence because it is an admission of guilt. On the other hand, if the suspect says, “I didn’t do it,” that statement would not be admissible.
People believe that, if they have nothing to hide, there is no harm in speaking with the police. But we all know that is simply not true.
Bottom line if you are a suspect: Exercise your constitutional right to remain silent, invoking your right to counsel. The only words you should say generally if you are a suspect are simply “I want a lawyer.”