Legal: does it *ever* hurt to refuse to talk until you have a lawyer present? (US)

Factual Questions
21

What if you actually have been drinking? Maybe you had one beer with dinner; you’re not exactly driving under the influence, but if you say no, then you’re lying to the cop. Maybe your not-so-savvy wife or kid in the car with you says “what about that beer you had with dinner,” and suddenly you may have a major legal problem.

If the cop is asking you questions that could incriminate you, you don’t need to insist on consulting a lawyer - you can simply refuse to answer such questions at all.

“Have you been drinking tonight?”

“Sorry officer, I’m not going to answer that.”

“What are you doing over here in [an area far from your home that’s known for drug activity]?”

“Sorry officer, I’m not going to answer that.”

“Are there any illegal drugs in your car?”

“Sorry officer, I’m not going to answer that.” (don’t say no, because if your passenger stashed some weed under the seat, you could have a problem)

“Do you mind if I search your car?”

“Sorry officer, I will not consent to a search of my car.” (this should always be your answer no matter what you believe is or is not in your car; your beliefs may be incorrect)

“Is there any particular reason you won’t consent?”

“Sorry officer, I’m not going to answer that.”

“I can detain you here until the drug K-9 arrives to inspect your car.”

“Acknowledged.”

Now he has to decide if he should waste everyone’s time with what may be an unproductive K9 search. If you’re lucky, he won’t - or he will, but the dog won’t find anything. But you don’t help yourself by confessing upfront, consenting to a search, or lying in an attempt to avoid being arrested.

22

Relevant video: Don't Talk to the Police - YouTube

After watching this video, I’ve come to the conclusion that it is never in my best interest to ever talk to a police officer without an attorney present.

23

And, of course, whether or not, and to what extent the officer can hold you while awaiting arrival of a drug dog depends on various factors; it’s not an indefinite amount of time, see: Rodriguez v. United States, 575 US ___ (13-9972) (2015)

24

Just to reiterate - in crime dramas (Law & Order 101) the police carefully don’t offer a deal - they only tell you “make things easier for all of us” if you talk. I seriously doubt the prosecutor will make a “you’ve got 5 minutes” deal (except if it’s L&O and they’re in recess from the middle of the trial…). The whole point of deals is to avoid a trial. Even a slam-dunk case at trial might be several days and a lot of everyone’s time. The cops can lie about things “your buddy confessed, if you don’t we’ll use his confession against you and he’ll get off”. But… they can’t promise a deal because police can’t.

Once the police have decided to arrest you, you very very likely cannot talk your way out of it - they’ve already decided there’s enough reason to arrest you, and whatever you try to argue will only add to the reasons. At the very least, you’ll send several hours downtown until your lawyer sorts things out. They people who think they can talk their way out of a traffic ticket, or arrest, or whatever probably have more confidence than brains and only make it worse for themselves. They are usually the type on Judge Judy “Yeah I broke into his house and took his TV but that was because he hadn’t paid back the $400 he owed me.”

25

It isn’t actually as straightforward a question as the YouTube professors make it out to be. Most people aren’t capable of intelligently evaluating those circumstances. They tend to think if they didn’t do anything wrong, they don’t need a lawyer. So the advice given is generally categorical: don’t talk to the cops. If the advice is more nuanced, most people would fumble it.

But the reality is more complicated. Sometimes it does hurt to refuse to talk to the cops. The main thing that will hurt you if you refuse to talk is that you piss off the cops. And in our broken criminal justice system, the cops have the power to fuck you. They can extend the period of your arrest. They can ask for and usually get higher bail. In many jurisdictions, they decide whether and what you’ll be charged with at least until your preliminary hearing. They decide how to testify and how truthful to be. Pissing off the cops is a very real negative consequence to exercising your rights–especially if your place in the social hierarchy is low enough that a judge isn’t going to buy your story, whatever it may be.

What that means is that if you witnessed a serious crime, and your real criminal exposure is small, and your social standing is low enough, you are often better off talking to the cops quickly. It should not be that way. But it is. l

26

That rolls back to post chappachula’s post #13. Does he recommend never talking to a cop at all, even if you’re just a witness to an event?

27

In most (all?) states, if you have a driver’s license, you have given “express consent” to submit to a blood/breath test to determine your blood alcohol level if cops have probable cause to believe that you are under the influence.

Meaning, if you get arrested for driving while drunk, the police will ask if you want to take a blood or breath test, or if you refuse (and, as a result, automatically lose your license). You are not entitled to speak to a lawyer before making this decision.

As for the OP’s question, and speaking as a lawyer, it actually doesn’t hurt to answer a question if your answer is consistent with all of the evidence. The problem is that, if you are the defendant, your statements will come in at trial, so anything that is inconsistent with all of the other facts of the case will tend to make you look guilty. That’s why, from your attorney’s perspective, it’s just easier not to have you say anything which the prosecution can work with.

But if, for example, you ran into a car that cut into your intersection, telling the cop (consistently) that you had the green light is not bad, especially if you did, in fact, have the green light (as will be verified by other witnesses, et al).

28

He told me (and my kids) to never talk to a cop without a lawyer present. His reasoning is that if it is not an absolute, there is too much leeway to waiver.

29

I thought legal counsel is provided free-of-charge if you can not afford one.

Yes, it’s pretty well known. I saw the video a long time ago and it is right on most points. Truthfully, even if you are 100% innocent and clueless, if the police come and want to talk to you about a situation, have a lawyer there. And remain silent, most likely.

I’ve often imagined a situation where the police show up at my door and ask me about something I am genuinely clueless about. I’d tell them I have no idea. If they wanted me to come in, I’d ask for a lawyer in the room. And remain silent, most likely.

30

Only after you are charged with a crime, and in many jurisdictions, not until you are either detained or appear at a preliminary hearing. They won’t give you a free lawyer just for interrogation.

31

Only after you’ve been arrested. So if you are the victim of a crime or a witness to one, you will not be entitled to a free lawyer.

**kayaker , **does your friend realize his advice can in fact get you into trouble in some situations? He’s absolutely correct that you shouldn’t talk to the police without a lawyer in a situation where you are suspected of committing a crime. But the reality is, that isn’t the most common situation where people are talking to the police. It’s far more common for people to talk to the police because they are victims of a crime or have been involved in an automobile accident. And in those situations, not talking to the police can have worse consequences than talking to them.

Imagine that I have decided to take your friend’s advice and never talk to the police without a lawyer present. I walk out to my car tomorrow morning at 6 am and it’s not there - but I’m not going to report it until I can arrange for a lawyer to be with me. It takes me until 10 am to find a lawyer I can afford to go with me to make the report. But before we get to the precinct to make the report, the police are at my house because someone driving my car mowed through a crowd of pedestrians crossing the street at 8:30. And there’s video that clearly shows that it’s my car with my license plate. Who is going to believe that the car was really stolen if I didn’t report it until more than four hours later, after the crime was committed?

Or I’m forced from my car at gunpoint , but my child is still in the car and I don’t report it until I can get a lawyer to accompany me and in the meantime the thief crashed the car and my child was injured. Or I don’t immediately report that my husband has beaten me, and although he does eventually get arrested, he gets acquitted because the jury doesn’t find me credible because I waited so long to report it.

32

If I walk outside to get into my car and it is gone, I’d call 911 and report the theft. My insurance company requires I do that. I do not think the 911 operator is “the police”. “My lawyer” is an attorney/friend who I’ve used for a number of legal situations, and I’d call him immediately as well.

Additionally, I want to keep my interactions withe the police to a minimum. If instead of my car, I were to find that my garden gnome had gone missing would I call the cops? Nope. My outdoor hose stolen? Nope. In those situations I am self insured. A police interaction isn’t going to get my $29.95 back, and I do not want to invite LEO onto my property unless there is no other option.

33

He’s a cop. He’s also one of the most honest, ethical people I know. Balancing the risks/rewards he has urged his friends to avoid interaction with law enforcement. That’s scary, and it is advice I’ve followed.

34

You may not consider the 911 operator to be “the police” - but where I live, if I call 911 to report my car stolen a police car is going to show up to actually take the report. And if I don’t talk to those real police, no report will be made. And while you may have a friend/lawyer who will rush right over to be there when they arrive, most people don’t.

I wouldn’t call them for a garden gnome or a hose either- but according to your rendition of your friend’s advice it was something along the lines of “never talk to the police without a lawyer . No exceptions. Not if you are the victim of a crime, not if you’re in a car accident , not if you are a witness to a crime or an auto accident.” And in some of those situations , not talking to the police is worse. I don’t know if your friend didn’t consider those situations or if he assumed that you would have the sense to be able to tell the difference or if he defined “talking to the police” so as not to include reporting crimes when you are the victim and therefore didn’t actually say the “not even if your a victim or a witness” part.

35

And, even then, aren’t you on the hook to have wages garnisheed (or whatever) if, for example, you later cash a CD or get a better job?

36

I think there is an excellent chance your friend is an asshole. Or at the very least someone very disgruntled with their job. The same people who say never have interactions with the police are usually the same ones who complain that the police can’t solve crimes.

I interact with many people all day long. Give them directions. Take reports of crimes. Perform CPR on their grandfather. Give narcan to their brother. Talk about the weather. 20 years none of them have ever needed a lawyer and it worked out fine for everyone. Except for the grandfather. He died. But a lawyer wouldn’t have helped.

37

I will answer that clearly for you but understand I can only answer for New Jersey. Here in many ways we go beyond what SCOTUS has ruled. All suspect interviews are taped. The police can not make deals. Although we are allowed to lie in interviews that is not absolute. There are limits. One of those limits is that we can’t lie about being able to make a deal. We can say we will go to bat for them with the prosecutor but that’s not a lie and we have to make it clear that we can’t guarantee anything. Also there is no way we can try to talk him out of getting a lawyer. If he says a word that rhymes with lawyer we have to stop and go over Miranda again I’ve seen a statement get thrown out when a suspect looked up to the sky and muttered “should I get a lawyer?” under his breath. It was thrown out because he wasn’t re-Mirandized immediately. No one tried to talk him out of it but he mentioned the word lawyer and that was enough. Our courts are very touchy about the right to a lawyer.

38

I don’t think he’s an asshole. I do know that he is very disgruntled with the job. His explanation of his disgruntledness is that the majority of the people he works with/under are dishonest to some degree or another.

39

Oh c’mon Loach. No one who has ever spoken to you without a lawyer has had what they said to you used against them? That seems terribly unlikely to me.

40

Lying to a police officer is not specifically a crime in most jurisdictions. You can’t pretend to be someone else to avoid a warrant or give false personal information to get out of a ticket. That falls under hindering and obstruction laws. Telling a cop you were on Maple st when you know you were on Main? Not illegal. Telling a cop you had no alcohol but you really had 10? Not illegal. Lying becomes a crime when it’s under oath and perjury.

The one big exception is it is against federal law to lie to the FBI. Just ask Martha Stewart.