Why does opening your mouth to the police or other law enforcement agents get you in trouble? After all, isn’t it natural to think you can talk your way out of a tough spot? It usually doesn’t work like that. There are at least seven ways in which waiving your Fifth Amendment Right against Self-Incrimination can hurt you in a law enforcement interaction.
First, a confession in your very own words is often the strongest incriminating evidence in a criminal case. The old saying that “the truth will set you free” doesn’t apply when you make a confession, either written or oral. By confessing, you add an additional important piece of evidence to use against you at a trial, or as leverage for the prosecution in negotiating a plea bargain.
Second, in a case where the police or agents lack probable cause and are “fishing” for enough evidence to authorize a search warrant or make an arrest, making a statement can provide them with a pivotal piece of information that makes the difference. They may never have had a case against you but for you supplying them with that one missing element. For example, an admission of knowledge or intent can be the critical element that gets you arrested; otherwise, you would’ve gone free.
Third, making statements can open the door to the discovery of other evidence. Telling the police where a particular piece of incriminating evidence is located – for example, a storage unit they didn’t know about – can result in them recovering evidence to use against you that might never have otherwise been found. Even if there’s a legal problem with the confession itself, derivative evidence may be admissible against you under some circumstances.
Fourth, while confessing, you can consent to the acquisition of more evidence against you. For example, the police may only have a search warrant for your house and may not have the authority to search your phone, computer, or car. Once you start talking with them, the conversation can lead to you waiving your rights and consenting to these additional searches, orally or in writing.
Fifth, if you lie to federal agents in an investigation, you will have committed a crime. You may think you’re helping your case by denying certain truths to the agents, but they may already have or may later uncover contrary information that shows you lied to them. That’s the “1001 Violation” under the U.S. Code that sent Martha Stewart to prison.
Sixth, you can say something that’s inconsistent with something else you say. If you’ve previously been interviewed and given certain answers, and now you change those answers, those inconsistent statements can be incriminating. Further, if you later say something different, such as in a hearing or trial, your credibility will be impeached by your prior inconsistent statement.
Seventh, you can say something that sounds good now, and maybe seems like it will get you out of trouble, but it is later belied by other evidence. Take Alec Baldwin. He didn’t have to talk about what happened during the recent fatal shooting on his film set, but he did. He denied pulling the trigger. Later, forensic evidence showed that he did pull the trigger. Better to have kept his mouth shut.
So, here you have seven different ways that opening your mouth can make things worse. If you are faced with a criminal investigation of any kind, you have the right to remain silent and ask for a lawyer to advise you. Respectfully declining to say anything other than to ask to speak with your lawyer can maximally protect you against all seven of these bad outcomes. Feel free to reach out to my law firm if you or a loved one is ever questioned or arrested by law enforcement. We are available 24/7 for legal emergencies at 516-294-0300 and have helped our clients from coast to coast.