Adam Goodman - Toronto Criminal Lawyer - Frequently Asked Questions - Talking to Police

“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”

- United States Supreme Court Justice Robert H. Jackson in Watts v. State of Indiana

Do I have an obligation to talk to the police?

There is no obligation to speak with the police.  This rule applies to both those being investigated as well as witnesses.  If the police ask an individual to provide a statement or answer questions, they are completely free to refuse.

[Note:  There are some exceptions where one is required by statute to provide a report.  In such a case, an individual should be informed of such.  Any statement in this situation is subject to protections and generally cannot be used against an individual in court).

I was a witness and am not under investigation, do I have an obligation to speak with police?

There is no obligation for witnesses to speak with police.  The only obligation a witness has is to appear in court if they are subpoenad to do so and to provide truthful evidence while under oath or affirmation.

An individual may also not believe they are under investigation but may actually be a person of interest to the police.

Is it in my interest to speak to police?

The scenario is quite common.  An individual may be believed by the police to have information about an incident.  The police may or may not be seeking to charge that person.  Another example is for those who have already been charged, or are present at the police station and about to be charged but believe they can avoid such charges by telling their story, or “talking their way out of it”.  Many believe that by telling their side of the story they’ll be able to avoid criminal charges.    There is also a commonly held belief that the police are more likely to charge an individual who is being uncooperative and they don’t want to “tempt” them.  This is all flawed logic as it does not recognize that the role of the police in investigating crime is to charge people whom they have reasonable grounds to believe have committed a criminal offence.

The general rule of thumb, adhered to by any competent criminal lawyer, is to advise against speaking with the police.  Keep in mind that to lay a charge, a police officer must have grounds to believe they are justified in doing so.  In most circumstances, if they have grounds, they will lay the charge.  With that in mind, when a police officer asks for a statement from an individual who has not been charged, it usually means they don’t have grounds to lay the charge.  Any statement may just provide those grounds.  As for those who have already been charged, it is extremely rare to convince a police officer to change their mind.

I want to tell my side of the story.  Won't it help my case if I am honest with the police?

First of all, there is nothing dishonest about refusing to make a statement.  The police are well aware that you have no obligation to do so.  If you are charged then you have the constitutional right to testify and tell your side of the story.  This is better to be done in a courtroom, after the pros and cons of doing so have been clearly explained to you, and where you have a lawyer present that is protecting your interests.  Keep in mind that if the police have enough evidence to lay a charge then they will do so, and it will be extremely unlikely to talk them out of doing so.  Similarly, if they have already laid a charge, it will be extremely unlikely to convince them to "drop" the charge.

Won't my refusing to speak to police make the police upset and subsequently charge me?

As mentioned above, the role of the police is to investigate crime and charge those who they believe there is sufficient evidence to lay a charge.  In the vast majority of circumstances if the evidence is there they will lay a charge.  With this in mind, speaking with police will only help them gather more evidence to lay a charge in the future.

Won't refusing to make a statement make me seem guilty to the Judge or Jury?

Judges are well aware of your right to silence, and juries are clearly instructed not to make negative inferences from silence.  Additionally, any statements you make that are exculpatory (helpful to your case) are generally inadmissible as part of your defence.

I have told police I don't want to talk, can they keep asking me to do so?

The police have a broad duty to investigate crime and are permitted to use tactics to try and convince an individual to speak with them.  Courts have even found that some forms of trickery is permitted.  They may place a lot of pressure on you to speak with them.  There are certain rules they must follow (for example, they may not offer any form of inducement, or"deal", such as the reduction of charges) which may result in statements being deemed inadmissible.

Can I speak to the police with a lawyer present?

The Supreme Court, in R. v. Sinclair, has recently ruled that there is no right to have a lawyer present when speaking to police.  This decision does not state that a lawyer is not allowed to be present, but rather that the police need not cease interrogation when the request is made.  That said, an individual could clearly state they will not make any statements without a lawyer being present.

What about statements made by young people?

There are very strict guidelines under the Youth Criminal Justice Act for statements made by young persons being charged with criminal offences.  The main guideline is that there must be a parent or guardian present.

I made a statement to police before being advised of my rights to counsel, can the statement be used against me?

It is possible your Charter rights have been violated and the statement may be deemed inadmissible.  This is a decision for a court to make following an application for Charter relief.  A court must first determine whether there was a breach and then go on to determine whether it is in the interests of justice to exclude the statement from evidence.

Isn't anything I say to police hearsay anyways?

There is an exception to the hearsay rule for inculpatory evidence (evidence damaging to your case).  Inculpatory evidence provided to police, however, will generally be inadmissible as hearsay evidence.

This subject was discussed by Toronto Criminal Lawyer Adam Goodman in May, 2011, on Adam's Law Blog.

Having the assistance of an experienced criminal lawyer in Toronto on your side will help you better navigate through the court system.  Contact Toronto Criminal Lawyer Adam Goodman today at 416-477-6793.