Don’t Talk to the Police, Reason #4: Inaccurate Reports

It is typically a terrible idea for a crime suspect to speak with police without a lawyer, even if the suspect is innocent. There are several major reasons for this, and one of them is that officers will typically not accurately report your statements.

I was reminded of this phenomenon recently, when my conversation with a law enforcement professional was written up in a report that I later had the chance to read. I was quoted inaccurately, and important legal distinctions were lost. The substance of the conversation, from my point of view, was completely misrepresented in the report. Importantly, this was a friendly and cooperative phone call, one where neither I nor any client was in trouble. I was speaking casually, and the other person had no motive to misrepresent what I said. Nor did the other person have a bias to misinterpret what I had said. It was just like the children’s game of telephone, but it only took one layer of communication for the message to get completely twisted.

Ultimately, no harm came from the miscommunication. But imagine the stakes when an officer tries to get a suspect’s or witness’s version of events, and gets it wrong: just one word off (was it a punch, shove or slap?), a sequence slightly off (did the accuser punch you or your friend first?), or an ambiguous word (“fight” can be either verbal or physical) replaced with a definite word, or vice versa. Just one word off, and the meaning can change dramatically.

The error might come from a language barrier, an officer mishearing you, or hearing everything you say through a filter of biases and assumptions based on what the accused has told him, or based on your age, race, gender, or other factors. The error might come from the challenge of remembering all these details long enough to write the report, sometimes hours later. The error may come from the writing style of the officer, who intentionally or unintentionally summarizes your statements in a way that fails to capture what you meant, even if the officer “got it” at the time of the interview and remembered it perfectly.

Whatever the reason, the difference between what you actually said and what winds up in the police reports has massive consequences for you, and the errors are virtually never in your favor. A district attorney that picks up the report will evaluate what charges to file and what plea offer to make based on these misheard, misinterpreted, misremembered, and poorly summarized statements. Further, the DA will interpret all of your statements according to his biases and expectation which, of course, do not favor suspects.

And you are really stuck with these statements—you can say you were misquoted until the cows come home, but the DA is always going to believe that the officer got your statements right in the report and that you are now trying to change your story to save your skin. Further, these statements can be used against you in trial, even if you do not testify. As a result, you may have to testify just to clear up those misinterpreted statements, which is a position you would like to avoid for a lot of reasons. You’d typically much rather either 1) not testify, or 2) testify, but start with a clean slate and be able to tell your story, for the first time, to a jury. There are of course some times when having made a statement to the police on scene will ultimately help you, but those times are the exception.

You are typically better off making no statements, and having your criminal lawyer speak with the detective (rare, but if done, done prior to filing) or the district attorney (standard, and usually done after filing) to discuss your side of the story. First of all, if your lawyer is responsible about them, these discussions can not be used against you (even if they are misinterpreted or misreported). Second, your lawyer knows what is important to the detective and the prosecutor and can clearly and deliberately emphasize the legally significant facts that show you are innocent, or at least, show that the DA would not be able to prove the case. There are times, however, where even your lawyer is not capable of convincing a detective or DA that an innocent person should not be charged. When you look guilty but are not, and you don’t have evidence to prove your innocence, it is often best to go to trial and make the DA try to prove the charges to a jury.

No matter how innocent and eloquent you are, leave it to an experienced criminal lawyer to tell your story to law enforcement (or to the jury, if the lawyer has reasons to doubt the good faith of the detective or prosecutor). Inaccurate reporting of your statements is just the tip of the iceberg, there are many more traps for innocent people. All of them start with the reasonable but misplaced belief that, because you have nothing to hide, speaking with police will help clear everything up. Unfortunately, that’s not the case once you are a suspect. Slow down, speak with a lawyer first.