Colorado Criminal Law – Damn It – Never, Ever, Ever Talk to the Police – There Is No Upside – It is incredible why so many people under investigation insist on telling their story to the police – naively believing that they are helping their case. The truth is this – never, ever, ever talk to the police after you have identified yourself.
When a police officer tells you he is there to “get to the truth,” – the “truth” is the police see themselves as part of the prosecutor’s team…. not your team.
There Is Never A Reason To Talk To The Police And An Unending Number Of Reasons Not To
The Right To Remain Silent – Use It. – When You Are Stopped By The Police
When a police officer wants to talk to you, you are either a potential target or a potential witness. They are conducting a criminal investigation and .. yes they want to solve the case – make an arrest and close the case.
Until you know which you are – it is ALWAYS in your best interest NOT to cooperate.
You must exercise two of your most precious rights, your Fifth Amendment Constitutional right to remain silent and your Sixth Amendment Constitutional right to a lawyer.
First – The Fifth Amendment Right To Remain Silent:
“no person…shall be compelled in any criminal case to be a witness against himself.”
Know this – a police officer cannot arrest you for refusing to answer questions. If the officer has probable cause to arrest you – there is nothing you will say or do that will stop that arrest.
You will NOT talk your way out of the arrest.
Until you know more about your role in the investigation – exercise – orally – and loudly so it is clear – “I am exercising my right to remain silent under the Fifth Amendment.”
Second – Your Sixth Amendment Right To A Lawyer:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
Known as “lawyering up” – the single most Constitutionally protective three words in the English language are- “I want a lawyer.” By saying those words – the police cannot ask you any more questions – period.
The law is clear. Just day “I want a lawyer”
Investigative questions – the basic questions asked at a traffic stop – such as license, registration and proof of insurance must be answered under Colorado law.
But other questions – such as in a DUI investigation – “How much did you have to drink tonight?” or “Where were you coming from?” – or “May I look in your trunk?” Should always be answered in the same way – “I want a lawyer” and nothing else.
“I want a lawyer” ends all questioning.
Some basic concepts first. Why you should not answer questions from the police.
First, police officers may attempt to mislead you into incriminating yourself.
Second, police officers may misunderstand what you say, intentionally or accidentally.
And third, you may admit to knowing some facts which can later be used to prove your involvement or knowledge of a crime.
Finally, the police may put words into your mouth and claim that you made incriminating statements, when in reality, you did not.
Why You Will Lose The Battle With The Police – The Police Don’t Fight Fairly
You are at a disadvantage when talking to the police. They are trained to trick you into obtaining statements that can be used against you at trial. You might think you can talk your way out of trouble… and maybe you can… but the odds are massively against you. Here is why.
Understanding How You Are Being Deceived Is The First Step- Tools, Tricks and Lies Used By The Police
The police are trained to deceive. What follows is a brief description of what is really going on in the police officer’s mind:
The Police Might Use The “Direct Confrontation” Method
This method is the least subtle, most used, and least affective. Using this method the officer will aggressively confront you with evidence he or she may or may have. They may even lie about finding your fingerprints at the crime the suspect’s DNA or fingerprints at the crime scene.
The Police Might Use The “Apology Method”
Using the your own sense of guilt against you, the officer will ask that you at least apologize to the victim to bring closure to the case. This may include an apology letter including the details of the crime.
The Police Might Use The “Your Side of the Story” Method
The second much more common and much more effective scenario is the “your side of the story” plea. This is the most effective and most used ploy. Here the police officer makes you feel as if he or she does not really believe the alleged victim and wants balance in hi report – he or she just wants to “hear your side” of the case.
Truthfully, the officer simply cannot take your side of the story as true. He or she is a reporter – especially in domestic violence cases. He reports on what the witnesses say and will add your statement into the case and then file the case after – most probably – arresting you right after you have completed your statement.
An un-counseled free wheeling statement can then be used by experienced prosecutors (I was a prosecutor for 14 years) to punch holes in your defense lawyer’s case.
When all of the evidence is known to the defense (after a case is filed – see below) even the most minor admissions and inconsistencies can and will be used against you in negotiations or at trial.
What DO I Do Then?
The answer is simply – one or two phrases – the “I will not answer your questions” and “I want a lawyer”… At the utterance of those last four words – at a minimum – all questioning must stop – they end the questioning.
You must assert your rights because if you answer the questions of the police – the Judge will consider the exchange a “consensual encounter” and a later claim you never intended to say the things you said will fall onto the Judge’s deaf ears.
An Even Closer Look At Why You Should NOT Talk To The Police
1. You Will NOT Talk Your Way Out Of An Arrest Or Being Charged – You Will NOT Talk Your Way Out An Arrest Or Being Charged
If you are a suspect in a criminal case – have been contacted and you are being detained pending investigation – the police most likely think you are guilty of having committed a crime based on other evidence in the case.
They already think you have committed a crime – and, as noted, since they already have evidence to arrest you for a crime, they will arrest you. You will know talk them down from that decision and pleading your case. Trust me – you cannot “talk your way out of” an arrest.
The police will not believe your protestations – they already believe you are guilty and are too cynical to change that view. It does not matter how articulate, educated and eloquent you are -you will not change their mind. You will be arrested and your statement – as explained below – can later be used against you.
2. Pleading For Mercy – Apologies And Other Acts Of Remorse – Based On Consciousness Of Your Guilt Over Having Committed The Crime – Should Be Held Back
If you believe you have done something wrong and have a need to confess your guilt to the police – wait to speak to a lawyer to learn the best way to do this. Nothing will stop you from pleading guilty and taking responsibility for your crimes in a court of law. The issue here is timing.
You will have the opportunity to negotiate a plea bargain later in the case. Your lawyer will explain your feelings to the District Attorney and to the Trial Judge. But if you confess to the police without explaining the context of your feelings and still attempting to get a fair result from the – often brutal – Colorado criminal justice system – you accomplish nothing but momentary relief but you will lose whatever benefit your words may have later in the case.
3. You WILL Make Mistakes If And When You Tell “Your Side Of The Story”
If you agree to answer questions and or tell your side of the story – you will embellish – it is all too human. Later, at trial, an experienced Colorado DA will make you pay for each and every one of those little “mistakes.”
Any mistake will be spun as an intentional lie – impacting your overall credibility and thus calling into question every other thing you have said in the case.
An example might be – in a case where you are defending the case based on the affirmative defense of self defense – you blurt out that you hated the alleged victim and, while he attacked you, he also “got what he deserved.”
An experienced prosecutor will use your honesty as a way to attack your defense.
4. The Officer May Interpret Your Words In Ways That You Never Intended.
Unless you hand write your statement – (also a bad idea for the reasons discussed above) – your answers to questions posed by the police or volunteered by you – will be interpreted by the police and written into their report. My clients, almost to a person, who later read those reports invariably say “I never said that” – or “that was taken out of context” or “why didn’t my whole statement make it into his report.”
All communications are filtered by the listener, in this case a police officer, and must be interpreted – unless they are direct quotes. Either intentionally or unintentionally, they will be distorted.
When your statement is admitted as evidence at trial against you (your statements are admissible under a special rule of evidence and are not hearsay) – your lawyer will do his or her best to reconstruct what you actually said or what you meant – but – trust me again – the old saying “when you are explaining you are losing” is true.
Juries invariably believe the police on issues such as this – what did the suspect say to you.
When you take the stand, if you do, and testify that “I never said those words” you are placing your credibility against the police – a position you will always want to avoid.
5. At the Scene -You Do Not Have The Other Evidence In The Case – Statements Made At The Scene Are Statements Made Without Knowing The Case Facts
When you answer questions posed by the police – they have much more information that you. They can use that information to ask questions that trick you into making assumptions about the case facts and evidence. You may answer their questions in good faith – but – you may make assumptions about the sequence of facts, what other witnesses have said and evidence located at the scene – that prove to be untrue.
Even if you have made an honest mistake, by giving your statement, you may have created an unintended consequence – a conflict in the evidence – that may later be impossible to explain.
It is like playing a hand of poker and exposing your hand after each card is dealt.
6. HMS – The Police Are Not Your Friends – They Have No Legal Authority To Help You In The Case
Here is the law – only the prosecutor has the right to plea bargain. The police and Judge’s do NOT have authority.
You cannot make an enforceable for leniency with a police officer. What you will hear, if you are listening, is that they will vouch for you with the DA – or put in a good word with the prosecutor’s office.
That promise is worth nothing. Always listen to what the officer is telling you. The police will promise that by answering their questions – you can “clear this matter up.” They will say that you will “feel better” if you get this off your chest. They may say that the jury will appreciate that you did the “right thing” and “cooperated with law enforcement.”
The police are not your friends – they are the enemy. Things will not “go easier” for you when you get to court if you make a statement – usually they “go” much worse if you cooperate.
Despite their claim that they are trying to help you, the only help police are providing when they take your statement is giving you rope with which to hang yourself.
7. If You Tell Your Story More Than Once – Every Inconsistency With Other Later Discovered Witnesses Will Be Made Into A Mountain
There is an old game that has been played with children in school for generations. A child at the beginning of a row is told a story. When the story reaches the end of the row ii is barely recognizable. When you make a statement to the police – even an honest and factually true statement – as human beings – the next time to tell the story – you will add, subtract or unwittingly change a fact or two.
You may just be clarifying a point or explaining a fact in more detail. In every case – it is nearly impossible to tell the same story in exactly the same way every time you recount it. It may seem unfair, and it is, but the prosecutor will spin those changes in ways you could never have anticipated to make you look as if you were lying…. Under rigorous cross examination – you will be made to look as if you have been lying – when only have only been honest and have only answered questions in good faith.
Summary And Conclusion – Colorado Criminal Law – Damn It – Never, Ever, Ever Talk to the Police – There Is No Upside.
I have written a dozen articles on this subject – and I will continue to do so – because, in the words of a brilliant law professor who has written on this subject much more than I, Professor Duane of The Regent Law School:
“Even innocent people who tell the truth to the police are often astounded to find that they just made the biggest mistake of their life and they’ve just given the police information that can be used, in fact, to convict them of a crime they did not commit,” he said. “It actually happens all the time.”
“……whether you are guilty or innocent, whether you want to confess or want to exonerate yourself, whether you’re poorly educated or the most eloquent speaker in the world, you should NEVER, EVER, under any circumstances, give a statement to the police when you have been detained as a suspect.”
“If a police officer knocks on the door without a warrant, he said his advice would be not to speak with them, unless the circumstance surrounds an individual calling authorities for help, or voluntarily assisting authorities with a case to which they are a witness.”
“I’d give that individuals the same advice that police officers give to their own children,” he said, noting that many cops tell their own family, “Don’t ever talk to the police.”
The Bottom Line
You must always invoke your Fifth and Sixth Amendment rights to remain silent by stating you do not wish to talk without first consulting a lawyer.
- DO NOT agree to an interview or answer any questions other than to identify yourself.
- DO NOT attempt to make a deal with an officer.
- DO NOT make any comment or statement.
Invoke Your Right To A Lawyer! – “Lawyer Up”
Colorado Criminal Law – Damn It – Never, Ever, Ever Talk to the Police – There Is No Upside
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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Damn It – Never, Ever, Ever Talk to the Police – There Is No Upside.