Talk to Law Enforcement Officers or Invoke Your Constitutional Right to Remain Silent?

Law enforcement officers knock on your door, flash their badges and say that they would like to ask you a few questions.  Should you talk to them without a lawyer? They almost always say that they just have a few questions to “clear things up,” and if you want a lawyer, that must mean you have something to hide. It will go a lot easier without a lawyer. They have not read you your rights, so based on what you know from TV; certainly they should not be able to use anything you say against you – right?

Well, despite the TV perception that “they have to read you your rights,” they don’t have to. Only if you are in custody must the law enforcement officers read you your rights to be able to use against you what you say. If you agree to talk to them and you are not in custody, they don’t have to read your rights to you and they can use against you anything you say.

So what should you do? Do you risk making them mad by asking for a lawyer? If you ask for a lawyer to be present for any questioning, is that just going to make it worse?

The Fifth Amendment to the United States Constitution grants you the right to remain silent. You are not required to answer questions by law enforcement. This is your Constitutional right, an important “freedom” which we as Americans prize.

Generally if you are the target of a criminal investigation, law enforcement officers hope you will say something incriminating when they question you. They talk to you because they want to gather evidence to be used against you. They almost never record what you say with a recording device, so it will be your word against theirs about what was said by you if you talk to them. If they contend you said something that is not true in answer to their questions, they can charge you with separate crimes of obstructing justice or lying to an agent in the course of an investigation.

Once the questioning starts, it is hard to stop it. You are being confronted without warning and without a chance to think over what you should say. Maybe you get confused and simply get it wrong. That will be used against you, and may support an entirely separate criminal charge. Martha Stewart went to prison for lying to the government during the investigation, not for the crime they were investigating. Should she have kept quiet? In hindsight, you bet!

So if the FBI or a Criminal Division IRS agent shows up unannounced and wants to just ask a few questions to clear things up, your best bet is probably to call an experienced criminal lawyer first. It might be in your interest to talk to them, but that decision should not be made on the fly without understanding what they want to talk about and without having a chance to think and remember clearly. It should be made with the help of a lawyer. Otherwise, you might be exposing yourself to a charge of obstruction. And you might later find yourself in a swearing contest with a government agent about what you said.