To Talk or Not to Talk, That is the Question

In my experience as a prosecutor and now at the conclusion of my first week as a criminal defense attorney a couple of common themes have arisen. First, regardless of how good you think your friend is or of how much they say they “owe you for protecting them”, he or she will NEVER do time for you. Second, I have never seen a circumstance, in fourteen years of criminal law practice, where “talking to the police to give your side of the story” was ever something that helped the accused!

To my first point, it often happens that to save money or to help one another, people find themselves in a situation where they need to share a house or an apartment with one, two, or several roommates. Sometimes, these roommates are people the person has known for a long time; but very often the roommates are people the individual doesn’t know very well and maybe met through other friends, school, or work. This leads to informal rental agreements where nothing is written down. The individual pays rent to the roommate and an expectation of privacy develops. However, unless there is a lock on the room door and no one in the house has access to the individual’s room, then when a search warrant gets executed everyone’s room will be searched! Further, when a roommate who also lives in the house grants consent to law enforcement to “come inside and look around,” that consent gets the police in the door and can lead to the development of probable cause to obtain a search warrant. The roommates present may decide to make statements to the police and to protect themselves it becomes very convenient to point the finger at the person renting the room who happens not to be home at the time! Finally, any evidence of crimes found can potentially be used against everyone under what is called a constructive possession theory. The lesson to be learned: the statements of others can lead to legal problems for everyone. It is important to abide by the law, and put a lock on the rented room door!

To my second point, when I worked on major drug trafficking and racketeering cases as a prosecutor, I was often surprised at the number of statements made by individuals to the police, sometimes while under arrest and sometimes just in casual conversation. Police are trained to investigate crimes by observing and by talking to witnesses, pastors, neighbors, and even people who at one point or another have been arrested. In long term investigations, and in complex investigations, the gathering of background information and “intelligence” information is often the most important aspect of developing a conspiracy or RICO case. Individuals think that because they are not under arrest they can freely answer questions of police officers and that this somehow builds some good will with the police in case something goes wrong in the future. These statements however, are often the explanations needed to connect crimes that originally seemed like they weren’t connected at all, which helps develop an element of a conspiracy or racketeering charge showing how people, or crimes are connected in an ongoing way. As citizens seeking to keep our communities safe, cooperation with law enforcement is necessary and commendable. But if you are an accused, or you believe you might be under investigation even if you are not under arrest, the wiser choice is to speak to a lawyer about the questions being posed by law enforcement. Finally, if you are under arrest, maintain your constitutional right to remain silent!