Why You Shouldn’t Talk to the Police

It’s a typical scenario. The police stop you on the street to ask you a seemingly innocent question. You have not done anything wrong. You did not witness a crime; so what is the harm in answering their questions right? Unfortunately that assumption is wrong. You may also think that if you are guilty of a crime and being cooperative and speaking to police will give you leniency, you are also wrong.

You cannot talk your way out of being arrested. If the cops want to talk to you they have a reason for doing so. Either you are a suspect or you are a possible suspect.

It is not in the police’s best interest to help you. The only people who can provide leniency is the  judge or magistrate. However, by the time you get to them you have already spoken to the cops and often helped them build a case against you with what you have said.

We all like to believe that we are innocent until proven guilty and the wheels of justice are fair. But life is not always like that. There are many instances where an innocent person has been convicted of a crime based solely on what he or she said to police.

Linguistics is a very tricky field. As soon as you say something it is out there in the world to be interpreted by the listener. The listener’s interpretation is based on the way in which they see and experience the world. So if the police believe you are a suspect, they will more than likely interpret what you say in a way that supports that belief.

Back in 2008 James Duane, a professor at Virginia’s Regent Law School, spoke about the risks of talking to police. His lecture has since been viewed over 2 million times on YouTube. His argument is based on the above-described principle. Even if you have not committed a crime, it is dangerous to say anything to the police because what you say could be interpreted as a lie or the police could misremember what you say in a way that favors their belief -which is that you are a suspect.

Why you shouldn’t talk to the cops

It is the role of the police to get the bad guys off the street and they have many tactics at their disposal to do so. As James Duane says in his interview in the Vice, “the reality is that over time police officers inevitably come to see themselves as part of the prosecutor’s team.” He says it is not a stretch that “you could either be “tricked “ into saying the wrong thing by the police who are under no obligation to be truthful with you; or what you say to police could lead you into being wrongfully convicted.

For example, you might make a mistake when explaining your whereabouts at the time a crime was committed. The police could interpret that mistake as a lie or the police misremember what you say later on down the road. Both of these scenarios could easily lead to a wrongful conviction.

Wrongful Convictions

There has been little research on wrongful convictions in Australia in comparison to countries like the United States and the UK. However, the Australasian Legal Information Institute documents 57 wrongful convictions in Australia from 1957 to 2015.

Some of these include a number of well-known wrongful convictions in NSW such as: the case of Jeffrey Gilham, Gordon Wood, Mark Standen, Janine Balding, Kathleen Folbigg and Lindy Chamberlain.

American surveys of criminal justice personnel including police officers, prosecutors/crown attorneys, defense attorneys and judges estimate the incidence of wrongful conviction is somewhere between 0.5 to 3 percent of serious felony convictions.

David Hamer, the author of several publications on miscarriages of justice, estimates that about 350 convictions a year in Australia “are to be factually wrong or left uncorrected by appeal.”

Presumption of Innocence

One of the general rules of law in all free societies is the presumption of innocence until proven guilty. Legal Aid NSW advises that the police cannot presume guilt just because you will not talk to them. They are not even supposed to think that not answering their questions means you are more likely to have done something wrong. You do not need to prove your innocence. It is the other way around. The police need to prove you are guilty.

How the ‘Right to Silence’ can be used against you

However as James Duane highlights, the contents of the Fifth Amendment or here in Australia the “Right to Silence’ are “poorly understood by the average guy on the street.”

James Duane argues that telling the police that you are making use of your right to silence could actually end up being used against you as evidence of guilt. He highlights the 2013 Supreme Court ruling that allows prosecutors to tell juries that defendants had invoked the Fifth Amendment. It is for just that reason James Duane says, that you should not even tell the police that you are refusing to talk to them. The safest thing to do he says, is to ask for a lawyer and “keep on asking until the police stop talking to you.”

The other problem he says is it is just too easy for the police to induce suspects into giving up their right to silence.  He says it is even easier for jurors to be deceived into thinking that they should hold the fact that someone refused to speak against them or that the suspect must be guilty of something if he or she chose to exercise his or her right to silence.

Not talking to the police may make getting the bad guys off the street a little more difficult for the police, but it is much better than putting an innocent person in jail. As James Duane says, “one innocent man unjustly convicted is much worse than one guilty man going free.”