Every single person in this country has a right not to incriminate themself. It is ingrained in the very fabric of our democracy. A cornerstone of our Bill of Rights. However, even though you have a 5th Amendment privilege not to become a witness against yourself, so many people do. And it hurts.
Having handled thousands of criminal cases, both as a prosecutor and defense attorney, I have actually begun to understand why people choose to provide information to the police that is ultimately harmful to themselves. The problem is, police have also figured this out and use it to their advantage. Police detectives are carefully trained in psychology and they use this to extract information out of people who would normally not speak to police. Police rely upon fear and intimidation in getting suspects to speak, even without appearing that way.
It's no secret that any type of encounter with law enforcement is uncomfortable. Police possess power and we fear it. No question. Think about that sinking feeling you get when you see the blue and red lights in your rearview. You pull over. Your heart is pounding in your chest. You have no drugs or illegal weapons in your car. You haven't been drinking. You don't have any warrants. Realistically, the worst thing that is going to happen to you is a traffic ticket. But you are still terrified.
Even in this situation, people will blurt out, "sorry I was driving so fast, Officer." Now why did you just say that? You are not required to say that, in fact our Constitution says that you don't have to. You just incriminated yourself, admitted to the officer that you were speeding. In traffic court, should the case proceed that way, the officer will come in and say to the hearing officer that you admitted to speeding. You just hurt your chances of winning.
Now that's an example of a very minor situation. Imagine something far more serious. Imagine you are a suspect in an attempted murder case. There has been a shooting but no gun was recovered. The alleged victim cannot identify the shooter but a witness, who did not see the actual shooting, gives police the partial tag number of a car seen leaving the area shortly after the shots were fired. The police run the make, model, and tag number of the car and it comes back to you. Police come to investigate and ask you to answer questions. The police sit you down in a small room, read you your Miranda Rights, and begin asking you questions. The police tell you that everything will be all right if you just tell them what happened. Under pressure and in fear, you confess, believing that the police have your best interest at heart and that by telling them what happened, you will somehow be in less trouble.
Wrong. You are placed under arrest and charged. With your confession and the witness's identification of your car at the scene, that is more than enough to secure a conviction. Without that confession, the police would not have had enough probable cause to arrest you. The confession literally sealed your fate.
Situations like these happen all the time. People get scared and trick themselves into thinking that by confessing to police, they are doing themselves a great service. Police may play good cop/bad cop. They may threaten or they may gently coax the confession out of you. Either way, fear is the foundation upon which a confession is built. Either you're afraid that by not confessing, you will be in more trouble, or you're afraid that you are already in trouble, but by confessing, you will be able to get out of it.
Confessions kill. Many times, a confession is the prosecution's greatest piece of evidence. So in essence, you have become the State's star witness.
Every detail about an interrogation is designed to generate as much fear as possible. It's not always a burly cop standing over you, shouting, "I KNOW YOU DID IT!!!" That only happens on TV. Most of the time, you'll be seated in a small, windowless room, alone for a very long time with just your thoughts. The cops like to keep a suspect alone in the interrogation room before, during, and after a confession. When your mind starts racing, people get scared. They being to think about what could happen to them. In desperate situations, a person may take great comfort in a cop who is being nice to them. Maybe they bring you some food or a cup of coffee. Maybe they let you go smoke a cigarette. On the outside, they may seem like they are trying to help, but this is a very specific tactic that centers around your own fear. Once you feel comfortable, you will grab onto them like a life preserver, believing - under the weight of your own fear - that the police can help you.
I find the good cop tactic to be more effective in obtaining a confession than the bad cop routine. Although both can work, depending on the interviewee.
Even if the cops are nice or mean, as long as they do not threaten you, promise you anything, coerce the statement out of you, or fail to properly honor your Miranda rights, the confession will be upheld. Police are given tremendous leeway by our laws. They can even lie to you during a confession, so long as they don't show you fabricated evidence (meaning that the police can tell you they have fingerprints but cannot show you a fabricated fingerprint card).
You must remember this: do not speak to the police without first contacting a criminal defense attorney. You have that right. If the police wish to speak with you, kindly tell them that you are invoking your right to remain silent and you want to talk with your lawyer. They must honor this request. If they don't and continue to question you, your confession will be thrown out.
You must always remember this: if the case is strong enough, the confession is less important. For instance, if the police have fingerprints, DNA, blood evidence, ten eyewitnesses who can identify you, and video surveillance, your confession means nothing. They don't need it and likely won't push too hard for it. If the cops are pushing you to speak, then it probably means that they need your confession in order to arrest you.
The Miranda Warning is true. Anything you say can and will be used against you in court. No confession is taken in vain. The cops want it for one reason and one reason only: to arrest you. If you proceed to trial, the detective who took your confession will testify to a jury about what you said. If you wrote your confession or it was taped, the confession will be presented to the jury for them to consider as evidence of your guilt.
In a police interrogation situation, you must remain calm. You must remember that you have rights and that nobody can deprive you of them. I have seen countless situations in my career where the client's confession was the single most damning piece of evidence against them. In fact, in most cases, if they hadn't confessed, charges never would have been filed.
Police encounters are, by their very nature, frightening. Nobody likes to be in the presence of cops. But you must hold onto to enough foresight to know that your rights are there in order to protect you. Do not become your own worst enemy. Under no circumstances should you ever speak to the police without first consulting an attorney.
Eric Matheny is a former Miami-Dade prosecutor and criminal defense attorney serving Miami-Dade and Broward. Call Attorney Eric Matheny to discuss your case.