Recently, I represented two clients who each contacted me because they had received calls from a law enforcement agency requesting they come in for an interview. Both clients were wise enough to immediately contact and retain defense counsel. Ultimately, for one client, we met with an officer, for the other client we did not. Both clients achieved the same result: neither was arrested or charged.
So what do you do if you get a phone call from a police officer requesting or directing you go to the police department to talk?
You immediately contact and retain criminal defense counsel. Why hire criminal defense counsel, you may ask, particularly if you have not done anything wrong? An incredulous agent with the Georgia Bureau of Investigation once asked me that very question during a client’s interview. There are multiple reasons why it is important to hire defense counsel and foolish not to, but all of them boil down to protecting yourself and your rights. Having a lawyer is not an admission of guilt.
Defense counsel can advise you of your rights and potential consequences, including collateral consequences you may not be aware of. An attorney also acts as a buffer by interacting with the officer directly so you do not have to and, thus, can protect you from a police officer who might otherwise attempt to intimidate you into or while meeting with him.
Defense counsel can prepare you for the type of questions you might have to answer if you meet with the officer and assist you in determining whether to answer particular questions while meeting with the officer. Defense counsel can also help you decide whether and when to halt a meeting with the officer. Finally, defense counsel serves as a witness to what is said by the officer and by you during a meeting should there be a difference of opinion later.
The deeper issue, once you have retained defense counsel, is whether you and your attorney agree to speak with the police officer.
From a legal standpoint, you have a constitutional right to decline a police officer’s request or demand for a meeting. The U.S. Supreme Court held in Ohio v. Reiner, 532 U.S. 17, 21 (2001), that the Fifth Amendment privilege against self-incrimination is intended to protect the innocent as well as the guilty. The Supreme Court stated that “one of the Fifth Amendment’s basic functions is to protect innocent men [and therefore women] who otherwise might be ensnared by ambiguous circumstances” and, further, recognized that truthful responses of an innocent person, just like those of a wrongdoer, may provide law enforcement with what may be viewed as incriminating evidence and/or “a link in the chain of evidence.”
From a practical standpoint, there are generally both pros and cons to meeting with a police officer, even for someone who is innocent. My advice to a client about whether to agree to be interviewed by a police officer is made only after reviewing relevant facts and circumstances with the client and weighing the potential benefits and consequences of meeting with the officer. Often my advice rests on whether the client’s goal is to avoid being arrested or to avoid being convicted.