What To Do When Law Enforcement Wants An Interview
By: Mark Eiglarsh
It is not uncommon for an attorney to receive a call from a client who, speaking in a low panicky voice states: "There are a bunch of law enforcement officers at my door and they want to speak to me. What should I do?" Many attorneys would quickly advise: "Go ahead and speak to them, and make sure you tell them the truth." Other attorneys may say: "Don't say a thing and remain silent." What is the best advice for an attorney to offer under this scenario?
What If They're "Innocent?"
Generally, a person is not required to speak to a law enforcement officer. All persons enjoy the Fifth Amendment right to remain silent. Even if someone is absolutely convinced that he didn't do anything unlawful and is completely innocent of wrongdoing, it is still not advisable to converse with law enforcement until a lawyer is consulted. First of all, most people are not qualified to know whether they are innocent of wrong doing under state or federal law. Often times, if someone has knowledge of a crime and committed some minimal act in furtherance of the crime, she may be arrested as a principal, an aider or abetter, or an accessory after the fact. Additionally, some crimes don't even require criminal intent. Thus, a client not intending to commit a crime, and believing she is innocent, may be guilty nonetheless. Second, informal law enforcement interviews typically are not recorded. Thus, a law enforcement officer may mistakenly or intentionally report that a person made an admission that the person never made. Even if the interview is recorded, a law enforcement officer could misinterpret what an interviewee states as an admission, or may later interpret body language, speaking characteristics, or other conduct of the interviewee as indicating guilt. It's important to note that the agents have the luxury of carefully studying all of the information surrounding the investigation before they make contact with a suspect. The potential interviewee, on the other hand, may not have thought about the subject matter and/or the underlying details for years. Under those circumstances, a person could easily make a factual error during the interview. One seemingly slight and minor comment to a law enforcement officer could later turn into a "damaging admission." If a person makes an unintentional false statement to agents, one of two things could happen. An experienced law enforcement officer may surmise that the person made an "innocent" mistake and is otherwise telling the truth. But, if the agent is inexperienced, overzealous or believes the interviewee is guilty, the "mistake" can easily be interpreted as an incriminating intentional falsehood.
What If Agents Think They're Lying?
It is a crime to lie to federal agents even if the perceived lie is oral and not under oath. Title 18, U.S. Code, section 1001 makes it a crime for a person to "knowingly and willfully make any materially false, fictitious or fraudulent statement..." It is not necessary for the government to prove that the lie actually ever influenced someone. U.S. v. Gaudin, 515 U.S. 506 (1995) It simply needs to show that the person knew the statement was false at the time, regardless of whether the person knew it was a crime or was given any warnings prior to initiating the interview. Martha Stewart was convicted of lying to federal agents, in violation of this statute.
Recommended Course of Action
Clients should be instructed to tell the agents that they respectfully decline to be interviewed. They should inform the agents that they have an attorney or will be seeking representation and that they don't want to discuss anything without first conferring with counsel. Many agents may be persistent and inquire why one would need an attorney if they have "nothing to hide." The client should never respond to these statements other then to repeat that an attorney has been or will be retained and that the attorney may subsequently contact the agent. Just as one's invocation of the Fifth Amendment can never be used against the person, invocating one's Sixth Amendment right to counsel is likewise inadmissible. U.S. ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973)
What a person does when law enforcement comes knocking and desires an interview, can have a profound impact on the person's future. Whether someone chooses to speak, what is said, and how anything is said could significantly impact an investigation. While there may be certain instances when it may be appropriate for a client to grant an interview with law enforcement officers, one should never do so without first discussing the matter in great detail with an experienced attorney. In most instances, respectfully declining law enforcement's request to speak is the best advice an attorney can give a client, until the attorney learns more about the client and the investigation.