Everyone has heard the Miranda warnings, maybe on TV, maybe in a movie, for my degenerate friends you may have even had them read to you a few times.  Have you ever really listened though? I doubt it because almost everyone waives those rights even though the government through their own warning tells you to shut your mouth and stay quiet.

What do I mean you might be asking?

YOU HAVE A RIGHT TO REMAIN SILENT

Rights are awesome, you should use them.  They are part of what makes this country great.  Everyone loves to talk about their right to free speech or their right to bear arms, both awesome rights but those rights don’t require you to shut up.  Shutting up can be difficult but it also can very likely save you from being convicted and help your lawyer help you if you are charged with a crime.  The only words you should ever utter, ever, if you are being questioned by the police is “I want a lawyer”.

I’m not giving this advice to those who are guilty of something, I am giving this advice to everyone, innocent, guilty, or somewhere in between.  If the police or other governmental agent is questioning you, you are already in a bad situation.  You aren’t that smart and you aren’t going to talk your way out of it… even if you are innocent.  All you are doing is giving admissions and/or information that the police may or may not already have.  If you tell them something that is consistent with what they already know, you might be confirming your guilt.  If you tell them something inconsistent with something they already know, you are a liar and thereby probably guilty.  If you tell them something that they don’t already know it might be you convicting yourself by your own admission or it might lead them on a path to find evidence against you.  Don’t talk, shut up.

ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU

This is the part I would almost guarantee you haven’t really thought about.  Think about that phrase for a second.   Anything, meaning whatever you say, is going to be used against you.  How do I know? Because they tell you it will be used against you.  You admit you did something wrong, they use that.  You deny doing something wrong, you’re a liar who is just trying to avoid responsibility which is the tell-tale sign of a guilty criminal.  You say you don’t know what happened, you are either lying or trying to come up with a lie, so you are probably guilty.  This isn’t my thinking of course; this is what the government is telling you that they are going to do with your statements.

So why do most of my clients talk? There are several reasons but none of them are good.  When you talk to the police while they are investigating you, you are doing the criminal law equivalent of performing your own open heart surgery, blindfolded.

Maybe you are innocent and just want to explain yourself, you didn’t do anything wrong so you might as well tell the police everything you know.  Don’t! Even if you are innocent you may make a mistake on a date, a detail, a time, a location.  Your mistake may be small and irrelevant but if you get charged then it because a lie, a cover-up, a deception.  Don’t do it.  If you are in fact innocent, awesome.  Innocent people get charged all the time.  Ask for a lawyer and let them help you.

If you are guilty it makes even less sense to cooperate.  It doesn’t help you.  If they say that the truth will set you free or that they will help you out if you just tell them what happened.  Wonderful, have a lawyer come in and get an agreement in writing.  The cops are allowed to lie, to mislead, to fool you into telling them things they want you to say.  Get a lawyer to help you with whatever you want to say.  That way you can make sure that you have an advocate on your side because before you have a lawyer, no one is on your side.

If it’s complicated and you might not be guilty but you aren’t exactly innocent, the same advice applies.  You probably have information that can help you but if you just give it away without a lawyer, you may not get the benefit that you need for that information.  Worse yet, you may end up giving the information in a way that makes you look way guiltier than you actually are.

It’s hard to stay quiet.  People want to talk, want to explain themselves.  That fine, you can talk and you can explain yourself, to your lawyer.  Just don’t do it with the police.  You will regret it and you will make the case against you worse.  A good friend of mine says that you should never talk to the police for any reason until you are 35 and have a mortgage, and he goes on to say that you don’t get a best buy gift card for talking to the police.  He’s right except that even when you are 35 with a mortgage you should stay quiet and use a lawyer.

If you have to explain things to someone, let it be your lawyer, your priest, or your psychiatrist.  They are the only people that have a duty of confidentiality and are actually supposed to help you.

YOU HAVE A RIGHT TO AN ATTORNEY

Use that right.  As soon as you ask for an attorney the questioning has to stop until you have one.  If it doesn’t stop either sit quiet or ask for one again.  I’m in no way suggesting that you be anything but respectful.  However if they continue to question you after asking for an attorney, it is they that are being disrespectful, rude, and violating your constitutional rights.  There is no obligation or requirement to cooperate.  Let the expert (your attorney) decide what the best way to proceed is.  They will have a fresh, unbiased, and trained set of eyes to look at the situation and help you with the case.

There are very few things that I can say with absolute certainty as a lawyer. It’s typically an inexact science.  What I can say is that unless you are exchanging pleasantries on the sidewalk or reporting a crime, there is absolutely no good time to talk to the police.  If they are investigating you or you get even the slightest hint that they might be investigation you, do yourself a favor, ask for an attorney and then SHUT THE F**K UP.  You can thank me later because I just gave you the best free legal advice you will ever get.

Kevin K. O’Brien
O’BRIEN AND WOOD, PLLC
41 State Street, Suite 503
Albany, New York 12207
Phone: (518) 694 – 8875
Facsimile: (518) 694-8877
Cellphone: (518) 618-5423