Talk to a Lawyer Before You Talk to the Police
If law enforcement is asking about a potential criminal case, there is no such thing as “off the record.” You should be extremely cautious about speaking to police or investigators without legal counsel, even if they haven’t arrested you or read you your rights.
Officers are trained to gather evidence, and that includes statements you make. They might say things like, “We just want to hear your side of the story,” or “Help us understand what happened,” or “We just need to clear some things up.”
You may also be in a mental state of wanting to explain or even apologize after a tragic accident. Despite these human impulses, talking to the police in this scenario is rarely in your best interest.
What Happens If You’re Not in Custody
If you are not in custody (for example, if an officer calls you on the phone, or you voluntarily go down to the station, or they just meet you somewhere to chat), they do not have to Mirandize you. Miranda warnings (the “you have the right to remain silent…” speech) are only required when you are both in custody and being interrogated.
In many DWI fatality and serious felony charges investigations, the most critical conversations happen before you are formally arrested or when you are free to leave, situations where Miranda doesn’t apply. As such, anything you say can be used against you later, even if you haven’t been “read your rights” because you weren’t technically under arrest at the time.
Can Talking to Police Help You?
Sometimes well well-meaning people think that being open, cooperative, and friendly with officers will prevent charges or make officers go easier on them – Danny Glover, OBX Criminal Defense Lawyer
Unfortunately, the opposite is usually true. By the time an investigator is asking you detailed questions, they likely suspect you of wrongdoing and are looking to confirm details.
Innocent-sounding questions like “Had you been drinking that night?” or “What do you think caused the crash?” are minefields. If you admit to drinking (even “two beers a few hours earlier”), that could become evidence of impairment when drunk driving is suspected or otherwise negate a self-defense argument.
If you speculate about the cause, “Maybe I didn’t see the car coming in time,” or “I was a little tipsy and wish it didn’t go down that way,” such statements can become evidence of your potential fault or legal culpability. Statements you give police can later be introduced in court as direct evidence, all too often out of context and in a very damaging fashion.
There is also very little benefit to talking without an attorney. Don’t make the mistake of believing you can outsmart the police or be able to talk your way out of charges in a serious case.
If anything, early statements can lock you into a story that might conflict with other evidence, which the prosecution could later use to suggest you lied or were unreliable. You might also inadvertently admit to things that the State would not know or would have to work hard to prove.
Remember, it’s the State’s job to gather evidence; don’t do their job for them.
When to Politely Decline and Get a Lawyer
Bottom line: If an investigator wants to “just ask a few questions,” politely decline and refer them to your attorney. Once you have legal representation, the police should communicate exclusively through your lawyer.
As defense attorneys, we’re not trying to make the police’s job harder; we’re making sure your rights are protected. Sometimes your attorney might decide it’s in your interest to provide a statement with certain conditions or immunities, but that’s a strategic decision that should only be made after careful analysis. In most cases, we will advise silence.
If you are accused of committing a crime and later face a criminal charge, there will be plenty of time to tell your side of the story in court, through the evidence defense counsel chooses to present, or through negotiations if that time comes.
It should be done in a controlled way that doesn’t backfire and make things worse. Casual conversations with law enforcement are not controlled; they tend to be one-way evidence of crimes.
Should you talk to the police if you were the only witness?
If you were the only person who saw what happened or the only witness at the scene of an accident aside from the victim (for example, a single-car accident where your passenger was killed, or a two-vehicle crash where the other driver died and no third-party witnesses saw it happen), then your account of events is extremely important.
That cuts both ways.
On one hand, you have knowledge of exactly what happened; on the other hand, whatever you say is likely the only narrative available to police investigators and detectives aside from physical evidence. This makes your statements likely to be highly scrutinized by law enforcement and prosecutors.
Officers and investigators may pressure you repeatedly for details. They might conduct multiple interviews, or “check in” with you periodically, each time hoping you reveal something new or even inadvertently change your story.
They could also be genuinely trying to piece together the truth. Either way, you become the primary source of information.
It’s a delicate position because sometimes you want the truth to come out, especially if the circumstances might favor you, but you also don’t want to incriminate yourself.
The Criminal Defense Lawyer Perspective: Why talking to the police isn’t a good idea
From the defense lawyer perspective, if you’re the only witness, we want to control how and when your information is shared.
It can be advantageous to have your attorney act as an intermediary. For instance, through legal counsel, you may be able to provide certain information to law enforcement in a way that protects you (like a written statement carefully prepared with legal advice, or a proffer session with some agreed conditions).
Your criminal lawyer might advise holding back on saying anything until we see what evidence the State actually has.
Remember, being the sole witness can present some defenses, too.
If there are no other witnesses, the State’s case might rely heavily on circumstantial evidence (GPS/cell phone tower location evidence, skid marks, vehicle damage, your statements, etc.).
We may choose not to give them the missing puzzle piece if that puzzle piece would incriminate you. Sometimes, silence or ambiguity can create reasonable doubt about what exactly happened.
Law enforcement knows this, so they can be persistent in trying to get you to talk.
They may say, “We just want to know if you can help give the victim’s family some peace,” or “Your honesty will go a long way” or “It’ll look better to the judge,” or “I’m just trying to do my job.”
It’s understandable to want to explain that maybe someone else is partially responsible, or the driver swerved suddenly, or the pedestrian came out of nowhere, especially if that is true and might appear to lessen your level of responsibility. But there’s a right way and a wrong way to get those facts on the record.
The wrong way is unprotected, without counsel, in response to police questioning, where you might not phrase it perfectly or you might accidentally admit to something that undercuts your defense (like “I didn’t mean for any of this to happen,” and now you’ve introduced a new form of evidence against yourself.
Protect yourself if you’re the only witness by having a lawyer manage the information flow.
We can always decide later to give a full statement, ideally after seeing the prosecution’s evidence. Sometimes we may find it useful to engage a forensic expert or accident reconstruction expert of our own to analyze the scene, so we have a solid basis (other than just your recollection) to explain what happened.
That way, if we do present your side, it’s backed by expert analysis rather than appearing self-serving.
Final Thoughts: Protect Yourself First
In summary, being the sole witness means anything you say can be both powerful and perilous. With the guidance of legal counsel, you can help make sure that your legal rights are asserted and protected. If it’s in your best interest to tell your story, we’ll do it at the right time and in the right forum (for example, in court or during a jury trial rather than in a police interrogation room). Until then, our advice will almost always be to refrain from giving detailed accounts to law enforcement.
After something bad happens, or someone gets hurt or killed, can be an emotional burden. Facing accusations of a serious felony or being involved in a fatal incident can take a toll, especially if you are the only one who truly knows what happened. It’s important to take care of your mental health as well. If you’re on the Outer Banks and the police want to talk to you, we strongly recommend you first speak with a criminal defense lawyer. Call the Glover Law Firm now to schedule a confidential consultation. 252-299-5300.