Knock, Knock. "Who's there?" "Police. Open up."
Every criminal case begins with an investigation. Now, some of these investigations can take mere minutes, while others could take years. For example, if Mr. X walks into a store, picks up an item off the shelf and walks out without paying for it, but is soon after stopped by store security and the police are called, the investigation is most likely not going to involve more than a brief statement from the security officer, a 2-3 paragraph police report and an arrest. However, in a circumstantial homicide case or an allegation of lewd and lascivious molestation that only comes to light 15 years after the fact, law enforcement is probably going to take their time and put more resources into the investigation.
So where do we, the criminal defense attorneys come in? Well, we often get calls from clients who have been contacted by law enforcement who say that they want to talk to them about some crime that has been alleged. Most of the time the underlying crime involves fraud, theft, sexual allegations, and battery. The officer usually starts out very polite and they "just want to clear some things up." Unfortunately, this is not a fair fight. The police officer is experienced and trained on extracting confessions. You, presumably, are not experienced or trained in holding up to the immense pressure that can be placed on a person who is under criminal investigation. However, these simple words can relieve all of that pressure.
"Respectfully officer, I want a lawyer. I want to remain silent."
With those magical words, law enforcement can no longer question you. The pressure has been relieved. What's more is that they can't use your refusal to talk to them against you in court. Many people ask,
"Well, won't the Judge or prosecutor think I'm guilty if I don't talk to the police officer."
The answer is no. What people fail to realize is that in the vast majority of cases, the prosecutor and the arresting officer actually have very little face to face communication early on in the case. There are just too many cases. You are just another file cluttering up their desk. The statements they are going to rely on are whatever the officer places in the police report. The police report is a probable cause affidavit, meaning that the Judge must use that officer's police report to determine whether it's more likely than not that the person committed the crime. So officers tend to only place statements in the police reports that support guilt, as opposed to statements that show innocence. For example, an officer may talk to a person he or she is investigating for an hour. The officer may include only one line in the police report attributed to that person. That one statement may make the person look guilty. So the long and short of it is that speaking to a police officer without speaking to an attorney can only harm you.
Now, this is not to say that you should never speak to a police officer when you are under investigation. However, anything you say can and will be used against you in a court of law. That means that if you get anything wrong. Anything. You could be putting a nail in your own coffin. Time. Dates. Names. Numbers. Any detail, no matter how small, could be used by the State to try to establish that you are being untruthful or guilty. However, when you retain an attorney, that attorney can contact the police officer and/or the prosecutor on the case and give them your side of the story. The attorney can try to convince the officer that you did not commit the crime without subjecting you to making statements that the prosecution later tries to use against you. Anything the attorney says on your behalf cannot be used against you in court.
For example, Mr. X is accused of stealing an Ipad from his roommate on December 5th between 2:15pm-3:30pm. The roommate knows that it was stolen between those times because he remembers specifically using it at 2:15. He then left to workout and he always works out for 1 hour and is home at precisely 3:30. He remembers placing the charger in the Ipad before he left and it was gone when he got back. The roommate says the only other person who had access to the apartment was you. The roommate also says that you and he have been arguing for several weeks because you have accused him of owing him $200 for rent. The roommate reports the theft to police but they are so busy, it takes awhile for anyone to be assigned to the case and to start an investigation. An officer knocks on your door 2 months later and wants to ask you questions about the Ipad. What do you do?
Scenario #1 - You say, "Sure. I'll talk to you. I remember exactly where I was at that time. I was at work. Go ask my boss."
The officer goes to your work and the boss provides the officer with your timesheet. Interesting enough, you worked the day before, but were off on that particular day. The officer now types up an arrest warrant for your arrest including in the affidavit that you lied about being at work on that particular day at that particular time. You come to LGL after your arrest and tell us, "I had forgotten that I didn't work that particular day, but now I remember where I was, I just can't prove it."
Scenario #2 - You say, "Respectfully officer, I'd like to speak to a lawyer and remain silent at this time." The officer may or may not arrest you, but chances are if the officer was going to arrest, he or she was going to arrest you no matter what you said. However, this time, whether the officer has arrested you or not, you come to LGL and tell us that you were working on that day. You have an alibi. LGL calls your employer and finds out that you were mistaken. You were not working on that particular day. After all, it is months later. You then remember exactly where you were. Now, you have had time to retrace your steps and have not given an inconsistent statement to any law enforcement officer. Even if your attorney called the police officer and told the officer that you were at work before you realize that you weren't, the officer cannot use that statement against you because it was not a statement that you made, but rather a statement made by the attorney. Your attorney acts as a buffer.
The moral of the story is that no matter what the facts are, no matter how innocent or guilty you are, no matter what the situation is, you should never speak with a police officer or anybody about a criminal investigation that could potentially involve you without first speaking with an experienced criminal attorney.
Depending on the severity of the allegations and particular facts, during the investigatory stage, a criminal attorney should speak with witnesses, speak with law enforcement, speak with the prosecuting attorney (if one is assigned), conduct his or her own investigation and otherwise do the leg work that law enforcement may not do. The ultimate goal is to uncover facts and evidence that may convince a prosecutor not to ultimately file charges in the case, or to file less serious charges.
Once an investigation is complete, whether it lasts only a couple of minutes or years, the police officer will decide whether to make an arrest. If there is no arrest, the officer will rarely tell the person that the investigation is complete and/or closed. A citizen has no right to a statement by police that they are not going to arrest that citizen. And quite frankly, sometimes new evidence is discovered days, weeks, or years later. So criminal investigations are technically never closed, because a person can be arrested for criminal activity at any time after it happens, no matter how long ago the criminal activity occurred. In some cases, a defense attorney can raise the defense of statute of limitations if the activity occurred too long ago, but that doesn't preclude the police from making the arrest.
After the criminal investigation is complete, whether it takes a few minutes or years, law enforcement will make a decision whether to close their investigation or to make an arrest.
Click here to read about the arrest process.