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Reasons Why You Should Insist on Your 5th Amendment Right to Say Nothing:

1.)  You cannot help yourself in any way when you speak to a police officer who has come to ask questions about a possible crime.  If what you say is bad for you, it will be used against you.  Someone else, like that police officer, can testify as to what you say because it is presumed that if you said something that could get you in trouble, it is probably true!

However, if what you say could be good for you, the only way to ensure you get to have it admitted into evidence at trial is if you personally testify!  The prosecutor doesn’t want to tell the jury the good stuff you said.  Your own statements that are good for you will be inadmissible as hearsay unless you are the one who is testifying as to what you said. If you do that, the prosecutor gets to ask you any questions relating to what you said!  Once you agree to testify and start answering questions, you have waived your right to say nothing under the 5th Amendment to the U.S. Constitution.

2.)  There is no way for you to know every possible way what you say can be turned around and used against you.  You don’t have all of the facts that the officer has.  Something that seems innocent to you could be combined with something the officer hasn’t told you and then you’re stuck!  You can’t take back what you’ve said.

3.)  If you are guilty of something, talking to the police cannot help you.  The more you say, the more they will have to serve as a reason to arrest you.  If you are arrested and the facts just don’t look good for you, there will be plenty of time for you to admit something when you have a lawyer who can protect you so that you only admit to what you have done and don’t accidentally admit to things you haven’t done.  Your lawyer is there to help you get an appropriate sentence based on only what you have done.  That is an agreement your lawyer can make with the prosecutor if it looks like the prosecutor can prove the case against you and you don’t want to risk a trial.  The police in California have no authority to make deals!

4.)  The U.S. Supreme Court tells you to say nothing!  In a case called Ohio v. Reiner, 532 U.S. 17 (2001), the U.S. Supreme Court said, “we have never held . . . . that the privilege is unavailable to those who claim innocence.  To the contrary, we have emphasized that one of the Fifth Amendment’s basic functions . . . is to protect innocent [people] . . . who otherwise might be ensnared by ambiguous circumstances.”  So, say nothing!

5.)  You are also relying on the investigating officer’s memory.  If you say something to that officer and that officer misquotes you at trial or even in the investigation report, whom do you think will be believed?  You are gambling on the investigating officer correctly recalling what you said.  You have better odds in Vegas!

6.)  If you are a suspect and you make true statements that are eventually contradicted by someone who is honestly mistaken, that will still look bad for you!  Without your statement, the police can’t compare what you said to what someone who might be honestly mistaken has said.  With your statement, given that you would be the one accused of a crime, you will be the one the police assume is lying and you will probably be arrested!

7.)  Finally, if you are just busting at the seems to tell your story to someone, wait and tell it to your lawyer!  Your lawyer is the only one who can help you.  Your lawyer is not allowed to tell your story to anyone else.

REMEMBER:  You typically will be confronted by two, three, or maybe more, officers.  These officers are far more experienced at conducting interviews than you.  They are trained to extract information from people through conversation.  Many times, they talk like it’s just a casual chat.  Thinking you can survive such an interview without giving that officer anything that can be used against you is like believing you can get into a boxing ring with an Olympic champion and win.  It’s just not gonna happen!  Politely and repeatedly say, “I won’t be making a statement”.

So, if you are contacted or approached by the police, whether at your house, in your car, at your business, your job, or anywhere, have yourself a big ol’ heapin’ helpin’ of ‘I won’t be making a statement’!  Just keep saying, “I won’t be making a statement”.  Close the door, walk away, hang up the phone; do whatever you need to do to politely end the conversation.  If the officer commands you to stop walking, do so.  Do not physically resist.  An officer may only come into your home or apartment or hotel room if he or she has a warrant.  You have no obligation to open the door for a police officer.  If the officer has a warrant, let him or her in.  You still have no obligation to speak.  If you are arrested, say “I won’t be making a statement” and “I want to speak to an attorney”.  Do not discuss anything after that!  Only speak to an attorney.  Remember, calls from jail are being recorded!  When you make a call, just tell your friend or relative to get you an attorney and discuss nothing else on a jail or police station phone.

Michael Troy Law is located in Santa Barbara, CA and serves clients in and around Santa Barbara, Summerland, Carpinteria, Lompoc, Ventura, Santa Barbara County, Ventura County.

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