“If I Just Talk To The Police I Can Clear This Up” — The Dangerous Delusion

“Don’t talk to law enforcement without consulting a lawyer” is simple advice. Anyone can follow it. Most of us understand why it’s a good idea. But too many people reject the advice because of a common and misplaced fear. It’s the fear that if they don’t return that detective’s call immediately, if they don’t invite the FBI agents at their door in and answer their questions, if they don’t cooperate, they will be seen as the sort of person who wants a lawyer. They will be seen as someone suspicious. They will lose the opportunity to “clear all this up” by “cooperating.”

If I say I want to talk to a lawyer, won’t I make things worse?

No. Almost certainly not.

When you view any interaction as your only opportunity to “cooperate,” you’re accepting a false premise, a law enforcement pressure tactic calculated to get you to act against your best interests and better judgment. On television, cops constantly tell suspects “you have to talk now, talk first, or we’ll give a deal to your buddy.” On television, that proposition is presented as true. But real life isn’t like television. In real life, that “now or never” proposition is almost always false. In 21 years practicing criminal law, I have never seen a circumstance where stopping the interview and talking to a lawyer would have destroyed someone’s opportunity to talk to law enforcement and resulted in harm to their best interests. There’s always been another chance, once the client has talked to a lawyer and taken advantage of competent advice about the situation.

The police want you to talk immediately, now, when they are unexpectedly at your front door. They want you to be startled, nervous, out-of-sorts. They want you to blurt things out — either admit true things that they can use against you, or make false statements that they can disprove and use to show you’re a liar. They don’t want you to have time to collect your thoughts, to refresh your memory about the events they are asking about, to look at any relevant documents or evidence, or to figure out the legal significance of the situation. The police know that’s against your best interests. They knowthat you should talk to a lawyer first. How do you know that they know that? You know because police officers consistently push for state laws and union rules allowing them to talk to a lawyer, review evidence, and take advantage of a waiting period before being interviewed about use-of-force incidents.

Good people — honest people — tend to think “I’ve done nothing wrong, so if I tell the truth now, I can clear this up.” They think “talking can’t hurt me because I haven’t done anything wrong, and because I won’t lie.” It would be wonderful if that were true, but it’s not.

First, you may not know whether you’ve done anything wrong. There are tens of thousands of federal, state, and local laws. Many of them are obscure. Do you know all of them? If you talk to law enforcement without consulting a lawyer, you may confess to a crime without knowing it.

Second, you probably don’t have an eidetic memory. You’re capable of remembering things wrong, especially under stress, and especially when talking about complex or distant events. If you tell law enforcement something based on your faulty memory, they may decide that you are lying deliberately, and charge you with making false statements, or use your statement to attack your credibility later when you remember the truth.

Third, law enforcement agents may be questioning you not to investigate and discover evidence, but to trap you. It is routine now — particularly with federal law enforcement — for agents to approach a suspect at the close of their investigation, not at the start of it, in hopes of piling more charges onto the prospective defendant. Federal agents will approach a suspect, ask them if they did something, and if they say “no,” add a charge of making a false statement onto whatever charges they were already seeking.

Fourth, regrettably, it doesn’t matter whether you are telling the truth. It matters whether law enforcement thinks you are telling the truth, or cares. If those FBI agents interviewing you have already made up their minds about the facts of a situation, by talking to them you’re only making it easier for them to mount a misguided case against you, or handing them an opportunity to charge you (unjustly) with making false statements.

Consider the case of Professor Xi Xiaoxing, a physicist at Temple University. The Department of Justice charged Dr. Xi with leaking sensitive technical information to China. They were wrong — the items in question were not sensitive or protected. The FBI agents and the federal prosecutors assigned to the case didn’t understand the science and didn’t bother to learn it, so they proceeded based on a false premise. They arrested Dr. Xi, prosecuted him, threatened to put him in jail, threatened to destroy his life based on a fundamental misunderstanding of the facts. Sometimes the government gets complex things wrong like that. Sometimes they get simple things wrong — like when they stubbornly believe an informant who is actually lying. When you talk to law enforcement under those circumstances, their false conclusions put you at peril.

Ultimately, consulting a lawyer before you answer law enforcement questions is like wearing a seat belt when you drive. Is it hypothetically possible that in an accident a malfunctioning seat belt could trap you in a burning car, like you’ve seen on TV, so you die? It’s possible. But refusing to wear a seat belt because of that remote, speculative danger is a foolish misapprehension of relative risks. It ignores the far more probable, far more dangerous risk presented by getting into an accident without a seat belt, and it ignores all the ways that a seat belt can dramatically mitigate your risk.

Don’t talk to law enforcement without consulting qualified counsel first.

Ken White

Ken White

Ken White is a founding partner of Brown White & Osborn LLP. He focuses on criminal defense and civil litigation, and particularly on white collar crime and First Amendment issues. He is a contributor to the Brown White & Osborn LLP blog.
Ken White