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Shut Your Mouth if Contacted by the Cops!

This subject comes up occasionally and has been addressed by various vehicles and in various forums over the years, but the message seems not to last very long, and much to the detriment of those who need it, so it is time to mention it again.  Ironically, my own clients who have heard me scold about this subject frequently cannot get it right.

Every time I read a questionnaire a new client fills out when they hire me and it is clear that they sold themselves down the river by their own ill-advised tacking to the police, I cringe.  When I ask why they told the police all of that stuff, they give me a shocked look and say "I thought I had to answer them."  NO YOU DON'T HAVE TO!

If you are contacted by the police, whether you are pulled over, detained [and a traffic stop is a detention!], arrested, or are merely in the presence of an officer, keep your mouth shut if you are being questioned about any possible criminal matter.  It never, ever helps you to respond to the police about criminal matters, if the subject matter is the probable, likely, or possible occurrence of a crime, by you or by friends/family.

The police function [I say “police” and not merely the vague “law enforcement,” because defense attorneys are generally more “law enforcement” than are the police, since we enforce the Constitution; they merely enforce statutes] is to put together the appearance of the commission of a crime, and by a specific person, so they can close out their reports. They are not social workers, pastors, counselors, best friends, neutral justice agents; they are agents of an entity that needs to pad their statistics to gain grant and legislated moneys for the continuation and expansion of their respective agencies, and they will employ virtually any means to do so.

So, if you are asked questions, politely decline to answer.  If you are arrested, you have to give them your name and address; short of arrest you have to give nothing. And don't wait for “Miranda” advisals to decide not to answer questions. Courts are very confused, and generally unhelpful, about Miranda issues [and most other constitutional points!], but you always have the right to remain silent about things being asked of you, whether you are told you have that right or not, so just shut up.

No, I am not saying to lie to the cops.  Occasionally, when I give this advice, I am met with “But I am an honest person; I don't want to lie.”  I didn't say to lie; I said to shut up.

The premise of the criminal justice system under our constitutional scheme of things is that people are presumed to be innocent [due process] and all the burden lay with the government to establish otherwise [due process], and they are not supposed to carry that burden from the mouths of the accused [5th Amendment], and they presumptively need a warrant to collect hard evidence against you [4th Amendment].  And government itself cannot make the final determination of one's guilt; it can only be made by a jury of citizens [6th Amendment].  These are things our Revolutionary forefathers died to protect and guarantee for us and for our heirs.  There is no doctrine that requires people to talk to government, except when subpoenaed to Court and a judge tells them to talk, and even then there are limitations on what they can be required to say.  But outside of Court, you never have to talk to government, and you never should.

You sully the memories of the founding generation who shed blood for you when you give up evidence to the government, either through speech or through consent to search, and you further sully that memory when you do not submit the question of the truth of government allegations against you to a jury.  And jurors sully that memory when they do not hold government's feet to the fire and demand that it properly and sufficiently prove things before even considering to find a person guilty.

So, for instance, if you are stopped for drunk driving, don't say how much you had to drink, nor what, nor where you are coming from, nor where you are going, nor how you feel, nor whether or not you are under the care of a physician; do not offer to perform balance tests, nor submit to the pre-arrest breath test; nor fall for any “I just need to fill out my report” duplicitous trickery.  The same sorts of matter apply if they are investigating you for the commission of some other crime.  Stand on your rights, and don't expect your failure to do so to be overcome by the attorney you should hire for any criminal accusation – some things in the field cannot be remedied in court.

No, Mr. Kennedy does not hate the police.  Mr. Kennedy has many police friends, but I also know that they are there to put a case together against you and to justify arresting you.  Do not supply them with the evidence for that justification.

If a stranger walked up to you and started asking questions about what you were doing, where you were coming from, where you were going, what you had to eat and drink and where and when, what would your reaction be?  Hopefully, your instinct would be to tell them it's none of their business.  Police are just that sort of stranger - if you would not divulge that stuff to the street-stranger, you do not have to do so to an inquisitive and self-regarding cop, and you should not.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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