*Update: I’ve done a video blog on this topic. Watch it here.

For those of my clients who are prudent enough to hire a criminal defense attorney after they have been accused of a crime, but before they are formally charged with a crime, one of the first questions they have for me is, “should I speak to the detective?”

In many unfortunate cases my client never gets to ask me this question because he or she is arrested immediately after the alleged conduct, and so the accused never has an opportunity to ask my opinion before making the decision to speak with the police. The suspect is put on the spot, the detective typically informs the suspect that he or she has a right to an attorney, and a right to remain silent (aka mirandizing the suspect), and then immediately begins to interrogate them before they have an opportunity to think it over. The interrogator tells the suspect that he has the ability to make things better for the suspect, that the he has discretion to help the suspect get a lighter sentence, and other rubbish that is usually far from the truth. (in many cases law enforcement is allowed to outright lie to you to provoke a confession) In fact I have studied interrogation tactics and have learned that interrogators intentionally cut off the suspect from speaking, informing the suspect that they will have their chance to talk, but that the suspect needs to first hear him out. This tactic is not for the sake of keeping the suspect from telling his or her version of the events first, or for the sake of maintaing order during the interrogation, but is for the sole purpose of preventing the suspect from invoking his or her right to a lawyer prior to the interrogation.

The interrogator has been trained to know that it is human nature to want to immediately defend yourself from accusations, and that once you have been thoroughly apprised of the allegations against you, the last thing you are going to be thinking about is your right to counsel, and the first thing you are going to be thinking of is getting your side of the story told. As soon as the interrogator finishes explaining to you what he believes you are guilty of, and it’s “your turn to speak”, you will be so anxious to set the matter straight that you’ll have forgotten about your right to counsel, and your right to remain silent.

In those cases where my client knows ahead of time that he is being investigated and is going to be interrogated, or is sharp enough to know that he should invoke his right to an attorney before speaking to a detective, then the question comes up, “should I even speak with the police, or should I remain silent?” That simple question can only be satisfied with a complex answer.

First, I ask, how do you plan on pleading? Is this a case where you want to work out a resolution with the state, and ultimately plead guilty to the charge, or some lesser charge? If that is the case, then cooperating with the investigation can be a two edged sword.

If you cooperate, the prosecuting attorney, and the sentencing judge will take note of your cooperation, and take that into account as a factor in your sentencing. Your cooperation may set the tone of your entire case. It may demonstrate that you are taking accountability for your crime, and willing to set things right.

On the other hand, if you invoke your right to remain silent, then you very well may leave in tact several holes in the prosecution’s case. Even if you are planning on pleading guilty, it may be to your benefit in negotiating with the state to have a case where there is reasonable doubt. Nothing motivates a prosecutor more to negotiate with the defendant than the possibility of losing a case at trial. Consequently when deciding whether to speak to the investigator, you may very well want to consider the strength of the state’s case. If you think that the state already has a rock solid case against you, then you may have very little to lose by speaking to law enforcement, and something to gain by being cooperative. On the other hand, if the state has an incomplete case, you may be able to work out a better plea agreement with them, due to the inherent reasonable doubt, than you would have if you filled in the holes with your confession.

If you were my client, and were planning on taking your case to trial, then almost under no circumstances would I encourage you to speak with law enforcement. It is my rule of thumb that if law enforcement wants to speak with you, then it’s because they need to speak with you to complete their case. And more times than not, if you are planning on taking your case to a jury trial, then it is better for you to say nothing, whether you believe you are guilty or innocent. It is a very rare thing for a suspect to go into an interrogation and leave that room with the charges dropped, even in the weakest of cases.

On the other hand, if you fall into the camp of defendants who know the state has a rock solid case against you, and you know there is little to lose by submitting yourself to an interrogation, there may be benefits to reap. In addition to the benefits I have already mentioned, there is the benefit that if you are not a risk to the community or a flight risk, sometimes you can get the detective to recommend to the prosecutor that you be summoned to court rather than arrested. What this means is that the prosecutor asks the judge simply to order you to appear in court on your own accord, rather than arrest you and physically force you to court. However, if you have been accused of a crime of violence, or there charges are serious enough that may try to run if given the chance, then the likelihood of you being summoned to court, rather than arrested, is low.

A bright line rule you can take from this post is, if you have been accused of a crime, then do NOT speak to law enforcement without an attorney present. If you have been arrested, and taken into an interrogation room, then the first words out of your mouth should be, “I want to speak to a lawyer”. If you have been contacted by a detective that wants to speak with you about the allegations, then tell the detective that your attorney will be in contact with him shortly. You should never speak to law enforcement alone. You have a right to have an attorney present, and asking for one does not make you look more guilty.