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/ January 31, 2014
How To Talk To The Police While Not-Quite-As-Sober-As-You’d-Hope

Puppy lawyer will take your case pro bone-o

Hello NYU, associated readers, and future prospective employers reading this column to determine my character fitness for a position with your certainly phenomenal institution. My name is Kevin Bell. I am a 2L at NYU Law, and I’m here to help lend some perspective on the laws that govern our brief beautiful lives. This week, I’ll be discussing that most desperate of circumstances, singing the NYPD Blues.

Whether you’re drunk, sober or high, you must remember one simple step when approach by the police: shut up. Let’s run through this together. Shall we?

Here we go. Step One: don’t talk. Shut up, ask if you’re under arrest and free to go, then walk away calmly. Well, that was easy!

Wait, what’s that? You can totally got this bro, because your dad’s a lawyer? Oh, well in that case, see step one. Oh, alright, you’re a senior, and so it’s legal for you to be out drinking? Sorry man, my bad, nobody who’s taken a 400 level class has ever gone to jail, so you should probably see step one.

Now let’s dig into why you should remain silent. Let’s start with my favorite logical fallacy: the appeal to authority. Justice Jackson, who before joining the Supreme Court served as both Attorney General and Chief U.S. Prosecutor at the Nuremburg Trials, explained in Watts v. State of Indiana that “any lawyer worth his salt will tell [his client] in no uncertain terms to make no statement to police under any circumstances.” There has not, in the history of Western Civilization, been a criminal defense attorney who said to himself, “I am sure glad my client had an unsupervised conversation with law enforcement before I got there!”

Most of us assume, incorrectly, that the Fifth Amendment’s protection against self-incrimination applies only to the guilty, the appropriately scare-quoted “other,” or the last few Governors of Illinois. This is a tragic misunderstanding of the Constitution. CSI: Tacoma and SVU make law enforcement appear to be an exact science, but as you may be shocked (shocked!) to learn, they don’t always get it right. The cops you’re talking to right now are interested in closing cases, especially yours, and every question you answer is moving them closer to that goal. Otherwise they wouldn’t be asking them.

Here’s the thing. You suck at talking to the police. Don’t feel bad, it’s not your fault, it’s just that the deck is stacked to make you suck at it. I will now quote at length the far-smarter than I criminal defense attorney and blogger Ken White from Popehat:

You have not been trained yet to recognize the tactics cops use to put you ill at ease during an interview. You are probably nervous. You are probably going to be answering questions off of the top of your heard. If you have decided not to take my advice to SHUT UP, you are probably eager to please and will strain to answer questions, even if it means guessing at things you don’t know or don’t remember.

Your instinct is to talk your way out of the situation, but that is an instinct born of prior interactions with reasonable people of good faith, and inapplicable to this interaction with people (1) who have mostly unchecked power over your and (2) who are, at the most optimistic, indifferent to how the interaction will turn out for you, and (3) who are perfectly capable of lying about what you said (or getting it wrong because they didn’t understand it) and having their word presumed true by the criminal justice system. [Qoute Via]

You should know by now that if you piss off the wrong badge, you can end up spending one or more nights in the clink. Even if you haven’t done anything illegal. Every word you say is putting you further into the suspect-category. While you’re being questioned nothing is being “cleared up real quick so we can let you go about your evening sir.” They’re hoping you accidentally confess to a crime, or even if you’re a witness, they’ll be perfectly happy if you (whoopsie-daisy!) incriminate yourself in something unrelated.

Your best course of action is to ask if you’re under arrest and if you’re free to go. If you haven’t said anything else so far, you should be fine, but if you’ve already been talking, a light will go off in your interviewers mind. He will then say something along the lines of “why, is there something you don’t want to tell me? What are you hiding?” Boom. Reasonable suspicion at least, if not probable cause, and now you may be arrested, searched, held without charge, and not read your rights for up to 24 hours until they have to release you.

All of this is assuming you’re dealing with an honest cop, which in New York, as a (perceptually at least) privileged NYU student, you cannot assume. You may inspire some seething resentment, or just irritate the officer, who’s tired of these damn kids’ antics that they always get away with, and so you get picked up for literally no reason at all. The Mollen Commission, appointed in 1992 by former New York Mayor David Dinkins to investigate corruption in the NYPD, issued a 158 page report which found police falsification to be “probably the most common form of police corruption facing the criminal justice system.” The report showed how NYPD officers coined the label “testilying” to describe their common and systemic practice of perjury to ensure convictions of suspects they just felt should go to jail. While he probably in good faith believes that you should go to jail, fortunately we leave that question to juries in this country.

Scared? Good. Hopefully that got the point across that you should really just shut up. If you really have borne witness to something, and want to give a statement, get a lawyer first.

Kevin Bell is not an attorney and does not represent NYU, NYU Law, or any of its affiliates. The content above should not be taken as legal advice and represents only the opinion of the author.  If in need of legal advice for any legal proceeding, seek an attorney.