BLOSSER When police ask to speak with you, your safest immediate response is usually to remain calm, avoid discussing the facts, clearly request an attorney, and obtain legal advice before deciding whether to answer questions.
Your first instinct may be to cooperate and explain what happened. You may believe that answering questions will clear everything up. Unfortunately, speaking without legal advice can create problems that are difficult—or impossible—to correct later.
You Have the Right to Remain Silent
The Fifth Amendment protects individuals from being compelled to incriminate themselves. During custodial interrogation, police generally must provide the warnings commonly known as Miranda rights, including the right to remain silent and the right to have an attorney present.
Police do not necessarily have to read those warnings before every conversation. An officer may approach you on the street, call you, visit your home, or ask you to come to the station voluntarily. Statements made during those encounters may still become evidence, even if you were never arrested and never heard a Miranda warning.
Do not assume that a conversation is harmless because an officer calls it “informal” or says you are not under arrest.
Ask Whether You Are Free to Leave
If officers approach you in person, remain calm and ask: “Am I free to leave?”
If the answer is yes, you may calmly leave. Do not argue, run, or physically interfere with the officer. If the answer is no—or the circumstances make clear that you are being detained—you can state: “I choose to remain silent. I want to speak with an attorney.”
After invoking those rights, stop discussing the situation. Repeat the request clearly and respectfully if necessary.
Do Not Try to Talk Your Way Out of the Investigation
People often believe that refusing to answer questions will make them look guilty. Exercising a constitutional right is not an admission of guilt.
Even an innocent person can misremember a time, make an incomplete statement, guess when uncertain, adopt an officer’s wording without realizing it, or say something that appears inconsistent with video, phone records, or another witness. Investigators may already possess information they have not disclosed. Once a statement has been made, it cannot be taken back.
Do Not Lie, Destroy Evidence, or Post Online
Remaining silent is lawful. Providing false information can create additional legal problems. Do not delete messages, discard property, alter social-media content, coordinate accounts with witnesses, or ask someone to conceal information. Preserve potentially relevant material and discuss it privately with your lawyer.
Do not post your explanation on social media. Investigators and prosecutors may obtain public posts, private communications, deleted content, and information supplied by other users.
Police May Keep Trying to Obtain Information
Investigators may contact you more than once. They may say they only need to “clear something up,” want to “hear your side,” or believe talking will help you. They may also contact relatives, friends, coworkers, or romantic partners.
Do not ask another person to communicate your explanation to police. Statements made through someone else may create additional witnesses and misunderstandings. Direct investigators to your attorney.
Should You Ever Agree to an Interview?
Sometimes counsel may determine that providing information is appropriate. That decision should be made only after the lawyer understands your status, the subject of the investigation, what evidence may exist, whether an interview can be limited, and the risks and benefits of speaking.
The proper strategy depends on the facts. The decision should be informed—not made under pressure during an unexpected telephone call or police encounter.
What if You Have Already Spoken?
Do not panic, and do not try to correct or expand your statement on your own. Write down everything you remember, including who was present, where the encounter occurred, how long it lasted, what officers said, and whether it was recorded. Then contact a criminal-defense lawyer promptly.
A Practical Seven-Step Response
- Remain calm.
- Do not physically resist or interfere.
- Ask whether you are free to leave.
- State clearly that you choose to remain silent.
- Ask for an attorney.
- Stop answering questions.
- Contact experienced criminal-defense counsel promptly.
A request to “just talk” can be the beginning of a serious criminal investigation. Advice before speaking allows you to make a deliberate decision instead of reacting under pressure.
Jeffery M. Blosser
Ohio criminal-defense attorney since 1998. Mr. Blosser represents clients across Central and Southern Ohio and has personally tried hundreds of jury trials to verdict.