When Police are investigating an allegation that you have committed a criminal offence, they will usually invite you to participate in an interview with them about the allegations. Deciding whether or not to accept this invitation can be one of the most difficult and important decisions you will need to make. Here are some things you should know before you make that decision:
Things you should know
Right to silence
Except for some specific circumstances, generally, every person who is suspected of a crime has the right to silence. This means that you cannot be forced to be interviewed by police. In fact, the law provides that if you choose to remain silent, your silence cannot be used against you in court.
Practical Hint: Your right to silence includes the right not to have your refusal to participate in an interview recorded. Sometimes, when you tell police that you do not want to participate in an interview, some will suggest to you that it is still a requirement that your refusal to participate in an interview should be recorded on video and audio. This is incorrect and, if you have make a decision not to be interviewed by police, you should insist that you do not want your refusal to be recorded in this way. You may however, agree to sign a police notebook saying you don’t want to be interviewed. Too often, after the recording equipment has been turned on, despite knowing that you have said that you don’t want to be interviewed, police nonetheless start asking questions about the allegations and, under the pressure of the moment, you might start to answer the questions even though that was not your intention.
No single right answer
Many people, including some lawyers, will tell you that you should never “talk to the cops”. While this is often wise advice, that is not always the case. Sometimes, participating in an interview with police can be of great benefit to your case. Get a lawyer – a really good one!
There is no easy way to decide whether or not it is a good idea to be interviewed by police. This article explores some of the factors that might influence that decision. However, there are many other things to consider and they will vary from case to case. At the end of the day, there is no substitute for getting advice from an experienced and highly skilled criminal defence lawyer who will be able to weigh up all of the relevant considerations and help you make this crucial decision. That said, there are some common factors which need to be considered in most cases.
What happens in a police interview
Usually, when Police interview a suspect they will do it in a specialised room in a police station called an ERISP room. ERISP stands for Electronic Record of Interview with Suspected Person. An ERISP room is a small room, usually with no windows, which is fitted with a desk and recording equipment. The entire interview is normally recorded on both an audio and a video disc so that there can be no dispute about what was said.
There are usually two police officers who conduct the interview. One who does most of the talking and another one who will initially listen and take notes and might later ask additional questions if he or she thinks the first police officer missed something.
You have the right to have either a Lawyer or a support person with you during the interview.
The form of the interview is usually question and answer. That is, police will ask you questions about the allegations and ask you to respond.
It is important to understand that, before police interview you, they would have already carried out investigations and likely, have a great deal of knowledge about the allegations and surrounding circumstances. Often, police will already know many of the answers to the questions they are asking you and the purpose of asking is not to find out what happened but to see whether or not you will give a truthful answer.
Depending on the personality of the police officers who are conducting the interview and the nature of the case, the questions and the comments by police can get accusatorial, heated, and sometimes even downright rude or offensive. If this happens, it can rattle you and prevent you from thinking straight.
At the end of the interview, the interviewing police will leave the room and another police officer who is not involved in your matter will come into the room and ask you a series of standard questions designed to have you confirm that the interview was conducted in a fair manner. If you feel that the investigating police have pressured you in any way (whether before the interview or during it) or you have been mistreated in any way, it is very important to tell this police officer.
Things you should think about
Your personality
The kind of person you are can have a big impact on your decision of whether to agree to be interviewed by police. Some of the things you should consider are:
- How do you cope with pressure?
- How articulate are you?
- How good is your understanding of English?
- If the interview is being conducted through an interpreter, how good is the interpreter? (Finding this out can be tricky but a good lawyer might be able to suggest ways to do this)
- How even tempered are you – might you get angry or lose your cool in the interview?
How much do you know about the allegations?
Sometimes, you might have a very good idea about what is being alleged against you, at other times you might have no idea at all. The more you know ahead of the interview the better your chances of being able to answer questions persuasively and accurately.
Do you have something to hide?
Even if you are innocent, there may still be things you might be tempted to hide from police. If you think there is any chance that police might ask you about something which you might be tempted to lie about, it is probably not a good idea to be interviewed.
As a hypothetical example, assume that your partner thinks that you have cheated on them and, as revenge, reports you to police and makes false allegations that you have been violent towards her/him. You have never raised a hand against your partner however, their suspicions of your infidelity are true. Unless you are prepared to fess up to your infidelity to police, you should not agree to be interviewed. If the question of your infidelity comes up in the interview and you lie about it and police can prove you lied, your credit will be damaged and this might lose you the whole case even though you might be innocent of the actual charge against you. This is not to mention the fact that lying to police creates an offence in itself.
Is this the right time to be interviewed?
Sometimes, you get to choose a mutually convenient date and time for your interview with police. Other times, police arrest you without notice, take you back to the police station and then ask you whether or not you want to participate in an interview. It might be completely the wrong time for you to have your wits about you. For example, you might be tired, you might be affected by alcohol or you might be still distraught about something that has just happened. If you think that for any reason you are not in the right state of mind to do well in the interview it is best to decline any invitation to be interviewed.
The pros
Some of the advantages of giving an interview to police are:
- Avoiding a charge – sometimes, giving an interview to police can help to avoid being charged with a criminal offence in the first place. For example, if you can tell police during the interview that there is compelling evidence to show that you are innocent and tell them where or how to get that evidence, police might not charge you in the first place (assuming that evidence checks out). This can avoid a great deal of stress, anxiety and cost.
However, you should not place too much weight on this possibility. In practice, it is rare that police would not charge a person because of what they have said in an interview. Remember, if you have been invited to an interview with police it is because police already have evidence against you. It is very difficult to persuade police not to charge you. It is definitely not as simple as telling police that you are innocent or trying to explain to them why the person who has made allegations against you might have made it up. Experience shows that police will usually charge you after the interview unless what you tell them in the interview is extremely compelling as to your innocence and is able to be verified independently of you.
For example, if police suspect that you have carried out a robbery at 4pm on the 1st January and you are able to tell them that at the time of the robbery you were several hundred kilometres away on a holiday and that you were at a particular fast food restaurant that has cameras and police are able to retrieve footage from those cameras which confirm that you indeed were where you say you were, that might be a case where police would not charge you. However, without those cameras or other compelling evidence supporting your story, you would probably still be charged.
- Early denial – if you do find yourself having to defend the charge in Court, your interview with police will be played to the Court [including the jury] at your trial. If – and only if -you did well in the interview – that is, you denied the allegations against you in a way that is believable and reliable and you dealt well with any curve balls thrown at you by police – this can go a long way to persuading a judge and/or jury that you are in fact innocent.
Additionally, it is tactically wise to have the recording of your interview played to the Court early, which is what will happen if you participated in an ERISP.
Rest assured, an early and good ERISP can go a long way toward winning you the case.
- Preserving evidence of your innocence – sometimes during an interview with police, you may be able to point them in the direction of evidence that shows that you are innocent. Assuming that police are doing their job properly, they should then go out and get that evidence. This can be particularly important if the evidence of your innocence can only be obtained by police and might disappear unless it is secured quickly. One example is the CTTV footage at a fast food restaurant used in the example above. If police know about it, they can contact that restaurant and obtain a copy of that footage before it is overwritten or deleted and lost forever.
The cons
The flip side of what is said above under ‘The pros of doing an ERISP’ is that a bad interview, can just as easily lose you the case. For every pro, there are cons to being an interviewed by police. Some of the main ones are:
- Making admissions – if you participate in an interview with police some of the things you say may incriminate you. For example, you might admit having done something which police could not have otherwise proved against you. Another way you might incriminate yourself is by saying something which the police can prove was a lie.
- Making mistakes – even people who are innocent can look like they are guilty if they get tripped up and make a mistake under pressure. This can happen in many different ways. For example, your memory of the events about which police are asking might be hazy because they happened a long time ago or because you were affected by alcohol at the time. You might say something that you genuinely believe to be true but may later turn out to be wrong. Although, this might be about a detail which does not in and of itself prove that you are either guilty or innocent,, if it can be shown that what you said was not true, it can look like you have either deliberately lied because you know you are guilty or your memory of the events is unreliable and cannot be trusted.
- Looking guilty – sometimes, even innocent people can come across as looking guilty, especially when they are nervous. The nerves, anxiety and pressure of being under interrogation by police can make you sound and behave in a way which can later be interpreted by a judge or jury as a sign that you are guilty. This can go a long way to persuading a judge or jury that your protestations of innocence should be rejected.
There is a lot more to it
The decision whether or not to participate in an interview with police is very complex and there are many things to consider. The topics addressed above are only the tip of the iceberg. Given that the decision about being interviewed by police is a crucial decision which can make or break the whole case for you, we strongly advise that you speak to a highly qualified and experienced criminal lawyer before you make it.
Criminal law is a complex topic that will require expert advice from one of the best criminal law firms in NSW in order to secure your future.
Contact Michal Mantaj to find out more.
