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Talking to the Police

“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”

– United States Supreme Court Justice Robert H. Jackson in Watts v. State of Indiana

There is no obligation to speak with the police.  This rule applies to both those being investigated as well as witnesses.  If the police ask an individual to provide a statement or answer questions, they are completely free to refuse.

[Note:  There are some exceptions where one is required by statute to provide a report.  In such a case, an individual should be informed of such.  Any statement in this situation is subject to protections and generally cannot be used against an individual in court).

The scenario is quite common.  An individual may be believed by the police to have information about an incident.  The police may or may not be seeking to charge that person.  Another example is for those who have already been charged, or are present at the police station and about to be charged but believe they can avoid such charges by telling their story, or “talking their way out of it”.  Many believe that by telling their side of the story they’ll be able to avoid criminal charges.    There is also a commonly held belief that the police are more likely to charge an individual who is being uncooperative and they don’t want to “tempt” them.  This is all flawed logic as it does not recognize that the role of the police in investigating crime is to charge people whom they have reasonable grounds to believe have committed a criminal offence.

The general rule of thumb, adhered to by any competent criminal lawyer, is to advise against speaking with the police.  Keep in mind that to lay a charge, a police officer must have grounds to believe they are justified in doing so.  In most circumstances, if they have grounds, they will lay the charge.  With that in mind, when a police officer asks for a statement from an individual who has not been charged, it usually means they don’t have grounds to lay the charge.  Any statement may just provide those grounds.  As for those who have already been charged, it is extremely rare to convince a police officer to change their mind.

One thing to keep in mind is that any statement will provide more evidence which a prosecutor can use to convict an individual.  A statement may provide inconsistencies which can be used to attack credibility if an accused takes the stand at trial (if a trier-of-fact finds an accused has lied, even once on a minor issue, they can decide to reject the entirety of the testimony).  A statement may also provide information to the police that can be used to further an investigation, eventually resulting in the finding of damaging evidence.

Here’s a great video from an American law professor explaining, very bluntly, why it is never a good idea to speak with a police officer:  Professor James Duane on why to never speak with police.

As a criminal lawyer, I would much rather a client tell their story in court, on the witness stand and before a Judge, with me their to protect their interests, than to a police officer.  That is, of course, if we determine it is a good idea for them to testify, of which their is no obligation.  From my experience, statements provided to police very rarely help an individual in court and very often hurt them (another thing to keep in mind is that exculpatory statements given to police, such as when a client claims innocence, are inadmissible in court by the defence anyways).

While this rule of thumb generally makes sense, some lawyers argue that there may be a occasions when it is worthwhile to talk to police.  These are extremely rare, and I can’t say I have encountered such a situation since I began my practice.  Keep in mind, though, that being charged with a criminal offence is not an easy thing to deal with, even if one is completely innocent.  An individual charged will be subject to bail conditions (or could have to sit in custody while their matter goes through the courts), will have to deal with the stigma of being charged, and will encounter legal fees.  Obviously, the easiest way to deal with a criminal charge is not to be charged at all.

I have heard of some counsel speak of situations where they have counseled their client to speak to police and have been able to avoid a charge.  While I don’t necessarily see myself counseling a client to give a statement, any decision to do so needs to be made after a thorough discussion with an experienced criminal lawyer.  Even with examples where statements have been successful, however, some very experienced counsel continue to advise that speaking to the police is never a good idea.

This blog post was written by Toronto Criminal Lawyer Adam Goodman.  For more information on Adam’s practice, please see his web site at www.aglaw.ca or contact him at 416-477-6793.