Everyone knows that innocent people have nothing to hide. If a suspect will not talk to the police, he must be guilty. This is conventional wisdom, but it is absolutely wrong. In my opinion, it is always risky to consent to an interview with police investigators without an attorney present. It doesn’t matter whether you’re guilty or innocent. I’ll give you some examples (all true):
Robert was a suspect in a murder case. He was also mentally disabled. After two days of questioning, Robert admitted being at the victim’s home when she “fell on a knife.” The victim’s home was burned to the ground. The source of the fire was cooking oil on the burner of the stove. Robert was charged with arson and first degree murder.
Forensic evidence established the time of the fire within a 20 minute window. During that time frame, Robert was purchasing motor oil at a store several miles from the scene of the crime. He left the store, returned home and placed a phone call to his girlfriend which was confirmed by telephone records. The fire occurred in the sandhills and Robert placed the telephone call from his mother’s home in Springfield. There was no possible way he could have been present when the victim was stabbed and the home set ablaze. The only evidence against Robert was his statement. He was incarcerated for almost 2 years before the charges against him were dismissed.
Aubrey was driving his pickup truck along a dirt road in Gulf County while arguing with his girlfriend. Both had been drinking. According to Aubrey, his girlfriend opened the passenger door and” bailed out.” She late motionless on the side of the road. Aubrey was able to flag down another vehicle and use a cell phone to call 911. Investigators arrived and questioned Aubrey. They did not believe his story. Finally, Gulf County Sheriff Frank McKeithen located a 22 rifle in the back of Aubrey’s pickup truck and surmised that Aubrey had struck the victim with the rifle. The muzzle of the rifle had blood and hair on it. Even though the victim had no visible head injuries, Aubrey agreed with the sheriff that he and his girlfriend had argued, and that he had struck her on the head with the rifle. He was arrested for second-degree murder. Forensic tests revealed that the hair and blood belonged to a dog. A jury convicted Aubrey of manslaughter solely based upon his false statement. Aubrey died in prison.
Laura was attempting to end a relationship with her boyfriend. When her boyfriend came to her place of employment she instructed him not to return to her home. She got off work, drove home, and saw that her boyfriend’s vehicle was parked in the front of the home. Rather than enter her own home and initiate a confrontation with her boyfriend, Laura spent the night in her vehicle. The next morning she entered the home, and asked her boyfriend to leave. An argument ensued. According to Laura, her boyfriend began collecting his belongings within the home. He retrieved a 22 revolver from a night stand, and then began removing bottles of hot sauce from the refrigerator. At that point, the gun discharged and the boyfriend was fatally wounded.
Forensic evidence established that the boyfriend’s mouth was open when the shot was fired as a bullet penetrated the back of his throat. It also established that the refrigerator door was open when he was shot. This evidence supported Laura’s version of the events. During several hours of questioning, Laura insisted that the gun was in her boyfriend’s hand when it discharged. Finally, Capt. Nolan arrived at work and observed the questioning. He did not believe Laura.
Capt. Nolan entered the interview room and confronted Laura. Nolan informed Laura that he had just left the hospital where her boyfriend was being treated for the gunshot wound. Laura was assured that her boyfriend was alive. Moreover, Nolan informed Laura that her boyfriend was able to give an account of the events. According to him, it was Laura that was holding the revolver when it discharged. Gradually, Laura changed her story and admitted that she was holding the pistol when it fired. Nolan concluded the interview at that point. At that point, Laura then asked Nolan how her boyfriend was doing. Nolan replied, “he’s dead.” Laura began crying uncontrollably. On the basis of her statement, she was convicted of manslaughter. She is still in prison.
In each of these cases, a suspect was persuaded to give a statement that, in all likelihood, was false. Each was prosecuted on the basis of that false statement. In my opinion, all three of these defendants were innocent of murder; yet, each was prosecuted. They cooperated with investigators and gave statements reflecting their version of the events. Unfortunately, investigators determined that they were lying. Psychologically, each of these three suspects determined that it would be better to agree with investigators than persist in telling the truth. This dynamic has been firmly established by research and case studies. In fact, the techniques employed by investigators are designed to induce admissions by suspects. This technique is commonly referred to as the Reid technique, named after its author. In his book, Mr. Reid claims that the technique is so effective that he should only be used when investigators are positive that the suspect is guilty.
Whenever I am asked to give advice to someone concerning a police interview, my response is the same. There are only two reasons that a police officer wishes to question you. You are either a witness or a suspect. If you are 100% certain that you are merely a witness, there may be no danger in consenting to an interview. On the other hand if you are a suspect, investigators are merely seeking to obtain inculpatory statements that they can use against you in order to prosecute you. The problem is you can never be absolutely certain of your status.
In either situation your response should be the same: “have the State Attorney send me a subpoena.” Unlike investigators, attorneys are bound by the rules of ethics. If you are questioned by an attorney, he cannot use deceptive measures and mislead you regarding your rights. Additionally, the questioning occurs on the record in an office, and not a police station. More importantly, if you receive a subpoena, you also receive immunity. This means your statement cannot be used against you. If you are only a witness, there should be no hesitation in serving you with a subpoena to appear before a prosecutor in the State attorney’s office.
On the other hand, prosecutors never subpoena suspects. The whole point of interviewing suspects is to use their statements against them. As indicated earlier, the issuance of a subpoena bestows immunity upon the witness; therefore, the State cannot use the statement against the witness. If you asked for a subpoena, you will find out whether you are a witness or a suspect.
