When You Should (and Shouldn’t) Talk to The Police, According to a Trial Lawyer

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Conventional internet wisdom is clear on when you should talk to police: never. While there’s a lot to be said for this philosophy, the internet is also often wildly wrong, and “don’t ever talk to a cop” has always struck me as overly simplistic. Sure, the fifth amendment says you can’t be compelled to incriminate yourself, and it is satisfying to tell cops to fuck off instead of saying, “yes, officer,” but how well does it work in practice?

I spoke with Chicago trial attorney Harold Wallin to get answers. Wallin has over 25 years experience with a focus on defending DUI cases, so he’s seen just about every kind of interaction between cops and citizens imaginable. It turns out that there are a lot of instances where it’s surprisingly a better idea to talk to the police than to dummy up.

When you should definitely refuse to answer questions from the police

“You should never talk to the police if they suspect you of a crime,” Wallin said.“If I get a call from a potential client who says, ‘a police officer wants me to come down to the station to clear something up,’ that means they’re looking for a confession.”

The cops have a lot of leeway when it comes to interrogating people, and they’re generally pretty good at getting folks to trip themselves up, often using less-than-honest methods. “They’ll say, ‘Look, I’ve got this nice thick file here. I know everything that happened. Your buddy told me everything, so I got a confession from him. Things would go easier if you just give me a full statement of everything, and don’t give me any lies, because I know what happened,’ but they’re making it the hell up,” Wallin said. “They don’t know what happened. It’s just a guess. That’s a common technique used by the police and it’s totally legal,” he added.

Even if you’re innocent and tell the police the complete truth, it could still come back to haunt you. “You could say, ‘on that day I was at home with my friend,’ but it could turn out you’re thinking of a different day, and your friend was at work that day, and now, even though it’s unintentional, you’ve given a false statement that can be used against you,” Wallin said. “You also can be at the mercy of what the police put on the report—if they’re writing a summary report and not taking a verbatim statement, or if it’s not recorded, which it may or may not be … Generally, attorneys don’t want a client to give a statement.”

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So if you’re suspected of a serious crime, don’t talk to the police, and if you’re arrested, ask for a lawyer.

But what about when it’s not so serious? Many interactions between cops and citizens are routine and don’t involve being handcuffed or hiring attorneys. It’s in these more common run-ins that the advice to “say nothing” doesn’t necessarily apply.

When (and why) you sometimes should respond to the police

The specifics vary from state to state, but even in the most cop-friendly parts of the country, citizens aren’t generally required to do more than provide ID and proof of insurance and registration to a police officer at a traffic stop. You’re not under any obligation, generally, to assist with police investigations or be nice to cops, or do much of anything else beyond complying with their lawful orders. Still, yelling “I know my rights, pig,” is probably not the best thing to do if you’re pulled over. You have the right to mouth off, sure, but in practice it probably won’t work out so well for you, especially if your goal is to get through with the encounter as quickly as possible.

“It’s really fact specific,” Wallin said. “If you’re in a traffic stop and you’re speeding, they’re going to give you a ticket, but if you’re taking your pregnant wife to the hospital or you have some other reasonable excuse, they might give you a warning … if you’re nice to them, you might catch a break.”

“Normally, they use these traffic stops as a way to fish for something else. It’s wonderful for them to get a speeding ticket or whatever, but they’re really looking to see if you have drugs in the car, a weapon in the car, if you’re a suspended driver, or if you’re drunk,” Wallin said. “If you get pulled over for going 75 in a 65, and now you’re acting very evasive and strange, and you’re refusing to talk to them, yeah, that would bump up the suspicion level.”

An evasive or combative attitude result in more scrutiny. According to Wallin, if you come at a cop hard about how you don’t talk to cops, “It could come into evidence in trial … it could be used against you, at least as an indication of consciousness of guilt and just general combativeness—not necessarily to prove the case against a person, but as an indication that the person may have felt they were guilty and did not want to talk.”

You should also probably talk to the police if you witness a crime, just to be a good person—and because the authorities could potentially compel you to testify in court if what you’ve seen is important. “It’s kind of your job as a citizen to be a good person, to tell them what happened,” Wallin said.

Sometimes it’s about how you refuse to talk to the cops

If you do decide to refuse to answer a cop’s questions for whatever reason, how you do it is important. Again, literally anything you say can be used against you. “[If you’re pulled over for a DUI] don’t say, ‘I’ve had three DUIs before, and my attorney said not to talk to the police if this ever happens again,’” Wallin said. “The right answer would be, ‘I don’t want to talk,’ and don’t add in why you don’t want to talk.”

Cops are people, and people vary

There’s nothing in the law that says you have to consider the humanity of the quislings who act as the enforcement arm of the state, but your life will probably be easier if you do. “Cops are like anyone else,” Wallin explained. “They have different personalities. Some are professionals. If you say ‘no,’ they say, ‘OK,’ and move on to the next step in their investigation. Others might take it personally, and think: ‘You’re the enemy. You’re a criminal, just crime-ing again.’” Keep that in mind and react accordingly, whether you choose to cooperate or not.

 

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