I used to believe that only the guilty were investigated by the police. And that police investigations were only launched after a process of careful deliberation. But then I spent the last 23 years first as a Federal Crown Prosecutor, and later as criminal defence counsel.
I learned that police investigations are sometimes started based on false (or legitimate) complaints by people who don’t like other people, or by mere police hunches that may or may not be justified, or sometimes just by plain chance. In many cases, the police have a duty to investigate complaints, even if they themselves don’t put much weight on the complaints. At other times, the police are trying to target particular behaviour - drug dealing, Internet-based offences - and go out looking for people to target, which means innocents could get caught up in a drag net with the guilty.
So never make the fatal mistake of thinking that just because in your opinion you’ve done nothing wrong, you should do whatever the police ask of you because that will best terminate their investigation and exonerate you as quickly as possible. In fact, the opposite may be true. Here are my top 5 things NOT to do if you learn you’re being investigated by the police.
1. Speak to the police before speaking to a lawyer
In my experience, most people just want to be helpful. Yes, there are lots of difficult people in the world, but mostly if you ask for directions, you’ll get an answer, even if it’s the wrong answer. When asked by an authority figure like the police to be helpful, there’s even more pressure. So I’ve found both those I’ve prosecuted and those I’ve defended are keen to spill their guts to the police, hoping that whatever they say will put police questions to an end.
I’ve got three words for you in response to a request to chat with the police: just say no. Seriously. Now I know saying no is not as easy as it sounds. It’s going to take a lot of will power. You might feel guilty about it. You might get worn down if they keep politiely telling you it will be far better if you help them out, as then they can eliminate you from their investigation. But don’t do it.
Nothing you ever say to the police is going to help you. Rather, it will later be used against you, even if you deny everything. Trust me, as a prosecutor at trial I always used things people had said to the police years before to contradict what they were saying now at the trial, even if the earlier statements were denials. Save what you’re going to say for a judge, or at least for your own lawyer.
It doesn’t matter if you think you’re persuasive enough to talk the police into dropping their investigation, and believing all your explanations. The officer you talk to may have very little role in the ultimate charge making decision. She might just be there to take your statement, which will later be picked over by other officers, lawyers, and judges.
Of course any strict rule like this has exceptions. That’s why you need legal advice. Your lawyer might tell you that answering certain questions could be best. Your lawyer might even be able to get written questions in advance. Your lawyer could come with you to the interview to help you answers the questions. Occasionally for non-criminal matters, you may be under a statutory obligation to provide certain information to the authorities - like for tax or automobile insurance enquiries - but you’re still going to need legal advice on how much information you should be sharing.
2. Admit to anything
As obvious as this might seem, all sorts of people confess to things they didn’t do because of becoming worn down by questioning, or because of the way leading questions are posed to them. Part of not admitting to anything is not agreeing with anything. And no need to become trapped by yes or no questions. If you’re asked if the grass is green or the sky is blue, there is no need to agree. Likewise, you don’t want to be agreeing with suggestions about times, or activities, or people known, or conversations. Just decline to talk about things. You have no duty to help the police (subject to those few exceptions, where you need legal advice).
I’ve worked with the police for a long time. I’ve come to appreciate that the vast majority of officers don’t want to elicit a false confession. They just want to get at the truth. But if what you’re telling them doesn’t fit with their preconceived notions, they might keep trying to wear you down into agreeing with what they believe is the truth, rather than what you know to be the truth.
3. Deny anything
You might think you’re safe denying everything, because you’re complying with the don’t admit to anything rule. But you’re not safe.
If you deny you ever met someone before, or visited a place before, and it turns out you’ve forgotten about one meeting or visit, then you’re later going to have a credibility problem. We all forget things, or are mistaken about things.
So don’t deny. Just don’t say anything. Not even “No comment” since that sounds too much like a denial of the guilty.
4. Destroy anything or obstruct the investigation
You risk being accused of obstructing justice, even if that isn’t your intent, if you unintentionally destroy material during an investigation that the police believe is relevant evidence, or make statements that have the effect of misdirecting the police. And then, even if you weren’t guilty of anything before, you might be found guilty of something just because of the way you acted during the investigation.
Been planning on cleaning up your computer hard drive for years by deleting a lot of files? Don’t during an investigation, or you might be charged with obstructing justice. Thinking of recyling the contents of all those file cabinets to do your part for the environment? Don’t during an investigation.
You might even be accused of obstructing by misremembering names and dates when giving a statement to the police, with the accusation being that you were intentionally misleading the police so as to frustrate the investigation. So saying nothing is the only safe thing to do.
5. Give the police permission to search your house, vehicle or person
Either the police have sufficient grounds and legal authority to search, or they don’t. It’s not your job to make their job either eaiser or harder than it should be. So either they can or can’t search for things, but you don’t need to insert yourself into that equation.
Maybe they need a warrant to search, maybe they don’t. Not your problem. It will later be your lawyer’s problem.
So if they show up at your door, and ask if you mind if they step in side, don’t agree they can come in. I know this might be difficult to do. That it seems rude. But once inside, they might wander around. The law can be vague on what can happen once the police are inside your house and courts come to inconsistent results when searches are later challenged. But if they show up with a search warrant, or otherwise claim legal authority to enter, then of course don’t stop them from attempting to enter. Just don't give them permission.
Same with your car. Maybe you’ve transported other people in it lately, and someone else left contraband behind? Think the court will believe you when you say the drugs don’t below to you? That you don’t do drugs? Uh, huh. So no need to tell the police that you don’t mind if they take a quick peek in your trunk, or you glove box. If they have the power to search, they won’t need your permission.
And last, the same principles apply to your person. If the police arrest you for something, they do have a right to search your clothing, and maybe a bag you are holding. But without an arrest, you don’t need to be turning out pockets, or opening bags.
You might be saying to yourself, I’ll never need these tips. I’ll never be investigated. And even if I am investigated, I’ll just tell the truth, and everything will turn out fine. But you need to believe me when I say I’ve been involved in hundreds of cases, and written three books on the law of investigations, and perverse things do happen. So protect yourself, and your family, and don’t say, or admit, or deny, or destroy, or agree to anything - at least without first talking to a lawyer. A little bit of lawyer advice is cheap, a criminal defence won’t be such a bargain.
Gordon S. Campbell advises individuals and organizations subject to investigations on their rights and duties, and can provide legal support right from the start of an investigation until its conclusion.