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What to do when the police want to talk to you

Part of our special report "Truth, Lies and Confessions", June 24, 2012

Philip Campbell is a criminal defence lawyer and Thumbnail image for Phil.May.2012.jpgpartner in the Toronto law firm of Lockyer Campbell Posner. Since 2003, he has done ground-breaking defence work in wrongful conviction cases, including the exoneration of Romeo Phillion, who was wrongfully convicted of murder in part due to a false confession. He has argued cases and consulted on the subject of Reid-style police interrogation techniques and the issue of voluntariness of confessions.

Q.  How do I know when I am about to be, or am being, interrogated as a suspect by the police, as opposed to just being questioned? Does an interrogation only happen after an arrest?

A. There is no bright and identifiable line between a suspect and a witness. If the police have developed clear grounds to lay a charge and fail to inform you of your right to counsel and your right not to speak, they may then be acting unconstitutionally and there is a chance that a statement given could be excluded from evidence. But people often go from being witnesses to suspects in the course of an interview without being able to recognize it. This is not a transition the police are required to identify or announce and they may not recognize it themselves.

Q.  What are my rights when the police start asking me questions?


A.  If you are under arrest or detained you have the constitutional right to contact a lawyer (and to be informed of that right and given an opportunity to exercise it -- though, it has been held, only once). You have the right to remain silent if you choose to do so, without negative inferences being drawn by a court from that choice. You have the right not to be subjected to questioning so coercive that your free will is overborne. But questioning by the police can be very aggressive, accusatory, prolonged, wearying and frightening without being unlawful.
 
If you are not under arrest, you have one right more important than any other -- to say that the questioning is over and that you are leaving the police station. You will not be informed of that right but it is always available and only a desire not to displease or alienate the police prevents many interviewees from exercising it.

Q. What's your advice to a person being interrogated, particularly an innocent person?

A.  Never voluntarily subject yourself to a police interrogation where it is apparent you are a suspect or accused. If you are approached as a witness you can ask the police, on videotape, to confirm that you are being questioned only as a witness and that you are not in legal jeopardy. After an arrest, there is an enormous power imbalance. The police -- hopeful of obtaining a confession, or damaging admission -- will take advantage of your vulnerability, at least to the limits of the law. Your best choice is always to consult a lawyer and you have a right to free consultation with duty counsel.

I would never submit a client to a Reid Technique interrogation. It has, in my view, a powerful capacity to elicit confessions from innocent persons as it strips them of the ability to provide credible denials and to advance an innocent account of their conduct while subjecting them to relentless pressure.  A technique that has such power to elicit a confession, while at the same time reducing its worth, is dangerous and deceptively convincing to a jury which can rarely understand why an innocent person, whatever the coercion, might say "Yes, I did it."

Q.  How, exactly, do I refuse to submit to an interrogation?  What do I tell the police?  And can I refuse to enter the interrogation room?

A. The best way to refuse to give a statement is to repeat, as often as necessary, "I do not wish to give a statement or answer questions."  Say that and nothing else -- no explanation; no apology; no elaboration -- just a simple, repetitive assertion of your right to remain silent.  You will then be faced with innocuous questioning far from the core of the police interest. You should not fall into the trap of answering these questions because they will lead to more significant questions, and if you then assert your silence, that might actually be taken as a statement and look terribly guilty.  

Under arrest you are within the lawful physical control of the police and refusing to enter the interrogation room is not a wise or useful strategy. Better to be in the room on tape if possible, repeatedly asserting your wish to remain silent.

There is a rationale for this and it is not the obstruction of lawful investigations. If you give a detailed, honest account of your actions, denying guilt of any crime, and are nonetheless charged, your convincing and heartfelt statement is unlikely to be heard by the jury. It is the prosecution, not the defence, which by law decides if a statement can be heard at trial. Thus, in a real sense, what you say to the police can hurt you, but not help you. And if you do have something to say which can decisively prove your innocence, there is little harm in telling your lawyer about it the next morning, letting the lawyer assemble the evidence, and then presenting it to the Crown who has complete authority over a case from the moment a defendant appears in a courtroom.

Q.  If I tell the police that I don't want to talk to them, do they have to stop asking me questions?  That's what the police do on the American cop shows.

A.  No. Be careful here. The police do not have to stop asking questions when you say you want to remain silent. But they do have to stop when you ask to speak with a lawyer -- at least the first time you ask. You and the police have, as it were, correlative and competing rights in the interview room. They have the right to keep asking and you have the right -- without fear that it can be used against you in court -- to keep declining to answer.

Q.  If I am under arrest and brought in for interrogation, how long can the police keep me there if I tell them I don't want to make a statement or answer questions?  When, or how, can I leave as quickly as possible?
 
A.  If you are under arrest that means the police have (or believe they have) reasonable grounds to believe you have committed an offence. At that point they are entitled to hold you and you have no right to leave. The police are required to bring you to court as soon as practicable and in any event within 24 hours. This means, in effect, that you can be held until the next morning and are subject to investigation during that time. The police may choose not to hold you if they decide they cannot make a case that will satisfy a Crown Attorney and - ultimately - a jury, or they may hold you.  Either way there is an end in sight to the uncomfortable process of being interrogated and your safest course is to consult counsel and say nothing until you know more about your situation and the evidence against you.  

Q.  When do I need to contact a lawyer?  Isn't it expensive?

A.  It is impossible to offer a formula for when you need counsel. Legal liability can arise in many unexpected ways. If you feel very nervous, it cannot hurt to ask a lawyer to speak with the police before an interview to find out the ground to be covered and to provide an experienced opinion on whether you face jeopardy. In police questioning you can probably tell you are at risk if you are being asked detailed questions about your activities; your relationship with a criminal or victim; your tastes or proclivities; or your location at a certain time. The same is true if you are asked to submit bodily tissues or fluids or to undergo a polygraph. These methods may be employed simply to screen large groups of people but it might be wise to consult a lawyer if you have any hesitation about such testing.

Duty counsel is free for persons under arrest or detention in Canada. But many lawyers will probably give you basic advice in a phone call from the police station, knowing that a retainer can't be arranged in the time period when you need the advice and supposing that if a charge is laid you may turn to that lawyer for representation. Do not ask for, or accept, legal advice from a police officer.

Q. What if I have information or evidence that proves I'm innocent? Why not tell the police about it?

A.  If you can prove your innocence, or you want to give an account, you can do that in your lawyer's office. If you have concrete evidence, then give it to your lawyer. He or she can provide the evidence to the police or Crown and deal with them on an equal footing, possessed of complete rather than selective information.

Q. But if I don't cooperate with the police by answering their questions, won't that make me look like a suspect?

A.  Yes, it may, and that contributes to the inequality. But it's not a reason to talk to the police. People are too concerned about looking innocent to the police. You should worry mainly about how you appear to a court where decisions about guilt or innocence are made.  People think they can get themselves out of an awkward situation by talking to the police, and too often, they are wrong.

Q. What about co-operating until you get the sense that the police aren't believing your denials and continue to treat you as a suspect?

A. That is much worse than saying nothing at all. It's very bad to give the police some information, and then stop talking. If the case goes to trial, the jury will see you as having stopped talking and infer there are subjects you can't discuss because you are guilty. It's better generally not to say anything at all.

Q.  Doesn't asking for a lawyer right away and refusing to talk turn me into a suspect, even if I wasn't one to begin with?

A.  It may. The police are free to become suspicious from the exercise of rights and some -- not the best -- will do so. But police suspicion is not your primary worry. It does not provide reasonable grounds to lay a charge and contributes nothing to the case for the Crown.

Q.  What if I am guilty, or complicit in some way in the crime?  Is there any advantage to me in providing information or confessing to the police?

A.  There may well be. But generally there is no need to rush into becoming a co-operating witness. In serious matters it can be a life-altering decision. Discussing it with a lawyer is always a good idea; he or she will know how to negotiate a deal for favourable treatment by evaluating the worth of your potential evidence and documenting a deal that will be honoured by the Crown and police.

Q.  The Royal Newfoundland Constabulary has chosen to adopt the PEACE model of interviewing.  Would your advice to a client be different in that jurisdiction in light of the policy change in interviewing techniques?

A. I have not had experience with investigative interviews based on the PEACE model and hesitate to comment on its strengths and weaknesses.  Its stated goals - honest and direct factual inquiries and a renunciation of coercion, trickery and the exploitation of vulnerability - are commendable and a possible antidote to abusive questioning and unreliable confessions.  I think that along with a change in policy, real reform requires a change in police culture.  It would be gratifying to see the courts encouraging reform rather than holding that traditional interrogation techniques are necessary and, therefore, permissible.  Once judges are persuaded that psychological coercion is not essential to effective policing, they are likely to ban it.

As to the effect on the advice of lawyers, remember that it is rarely in the best interests of a client to face police questioning in a setting where the interview could create admissible evidence against him or her.  That is equally so where the questioning is performed with finesse and a genuine concern to uncover the truth. So lawyers would be unlikely to advise clients to speak freely with an officer utilizing PEACE techniques. But the point of reform is not chiefly to make people willing to talk, but to conduct a better interview when, as usually happens, they do.



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