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The Right To Remain Silent

One of the biggest mistakes clients and potential clients make in the criminal context is making statements to the police without having first obtained a competent criminal defense attorney. Whether or not you have been formally labeled as a suspect, never waive your constitutional rights and make a statement without first having retained an attorney.

Don’t believe me? Ask Martha Stewart.

Stewart traded her ImClone stock the day before the stock crashed, likely through an insider tip. Authorities could not prove the insider trading charge and they knew it. However, when authorities interviewed Stewart about the stock sale she provided false and misleading statements. Ultimately, Stewart was not convicted of insider trading, but instead for Obstruction of Justice for making false statements to investigators.

I find it surprising that in the majority of criminal cases, even when a person knows they are a suspect, they voluntarily provide an incriminating statement. In exchange defendants are typically promised nothing more than a vague assurance that it is in their best interest to make a statement or that we (the police) will help you out.

As a defense attorney who has handled countless cases like this, I think the simplest explanation is that people are generally good natured and want to cooperate. Suspects typically believe, and are led to believe, that if they cooperate and come clean they will “get a break.” This seems like a logical assumption. Most are taught from a young age that if they are honest and take responsibility for their actions they will be forgiven or at least the consequences associated with a prior transgression will be mitigated. However, experienced New Jersey Criminal Attorneys know 99.9% of the time, this is simply not the case.

More often than not suspects volunteer information before actually securing a bona fide agreement with police. Think about it like a contract. Before a contract is created the terms need to be clear and both parties need to expressly agree to be bound by the terms. If you would not agree to be bound to the terms of a contract where only money was a stake, rather than your reputation or your freedom, why would you agree to waive your right to remain silent and to have an attorney present during questioning without fully understanding what you were receiving in exchange?

Just like you would hire an attorney or someone else versed in business to review a contract before potentially incurring an unforeseen and costly obligation, it is absolutely imperative that you hire an attorney to protect your rights before confessing or providing any other information to police. A competent New Jersey Lawyer knows how to clarify and negotiate the terms of an agreement with police.

What most suspects also do not understand is that once they have been charged with a crime or whether they will ultimately be charged, depending upon the crime, may not be in the discretion of the arresting or interviewing officer. Clearly, the police can recommend a certain disposition, but once a defendant has been charged the discretion rests with the prosecutor. Therefore, if you are a suspect it is important to establish definitive terms prior to surrendering your bargaining chip.

An additional problem is that many suspects do not realize, until it is too late, that providing a voluntary statement could potentially expose them to additional charges. Moreover, the average person would be surprised at how often a defense attorney receives discovery and realizes that if their client had not provided an incriminating statement it would have been doubtful, or at least difficult, for the State to have proven the charges.

Not only does a confession or an incriminating statement help solidify the State’s case, it essentially surrenders any type of leverage an attorney may have to obtain a dismissal or bargain for a lesser charge. The Miranda Warnings make clear that “anything you say can be used against you.” Although I am not aware of any formal analysis of the topic, I would guess that in almost half the cases I have seen, the State would probably not have been able to prevail at trial, but for the defendant’s confession. To be clear, I cannot emphasize how much I discourage lying or providing misleading information to police. Think, Martha Stewart. However, it is important that when you are a suspect you hire a qualified New Jersey criminal defense attorney before providing information to police.

by Joseph J. Bell, IV. Esq. 973-442-7900

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