How Do People Unintentionally Incriminate Themselves?

The number one way people unintentionally incriminate themselves is by talking to the police. Defense attorneys who are worth anything will always tell their clients not to speak with the police. The reason is that by the time a police officer speaks with you, that officer has probably already made up his mind about whether you’re going to be arrested.

For example, let’s assume a police officer is conducting an investigation and you get a call on the phone to come in for an “interview” to “clear some things up.” Chances are that the officer has already built up a case against you and is going to just use the interview as an opportunity for you to incriminate yourself. The officer is not going to want to create more work for himself by re-thinking the case, looking at alternate suspects, or investigating your claims of innocence.

Even seemingly minor details that you don’t think are incriminating can be incriminating if you tell them to the police in an interview. The police will never share with you what they believe they have uncovered in their investigation and there’s no way for you to know what information may or may not be important to them. So the smartest thing you can do is refuse to talk with them and speak with a criminal defense attorney to protect yourself.

This advice holds true even when the police want to talk to you at the scene of an alleged crime that’s just happened. For example, take a domestic violence case where there was a shouting match followed by shoving match between a husband and wife. Let’s say the wife called the police and said that her husband pushed her into the kitchen counter and she hurt her back and wants her husband arrested for assault. The police come, separate the husband and wife, and tell the husband, “Your wife says you pushed her, is that true?” The husband may say, “Yes.” All of a sudden, the questioning is over and the husband is charged with assault on a family member even though he’s innocent.

Why? It’s because the police didn’t ask the right questions and the husband didn’t know what to say to protect himself. The police never found out that his wife pushed him first or threatened him with a knife and that she only hit her back on the counter when he pushed her in self-defense. They only asked the one question they needed to “make their case.” Even though the husband was truthful in speaking with the police, he still gets charged with a crime. He would have been better off saying, “I don’t want to answer your questions until I’ve had a chance to speak with a lawyer.”

So, in short, don’t ever speak with the police. Even if you think it may “look bad” later, it really doesn’t. You have a right to remain silent and ask for a lawyer, and those rights can’t be used against you. It won’t hurt you at trial. If you end up having to testify at your trial, I will have made the jurors understand why you didn’t want to talk to the police.

The second way people unintentionally incriminate themselves–and I see this a lot in domestic violence cases–is deleting emails, text messages, and voicemails. Many times, when the police respond to a scene of alleged domestic violence, whatever happened started with an argument over text, email, or the phone. People get worried that the things they said or the things the other person said are going to hurt them and so they reflexively delete these messages.

That can get you in trouble because if the police find out you’ve deleted evidence of a potential crime, you can be charged with “tampering with evidence,” which is a third-degree felony. That’s rare, but it can happen.

More often, clients hurt themselves because they don’t realize they’ve deleted valuable evidence for their own defense. In a domestic violence case, the most important thing for me to establish is the context in which a mutual fight or a self-defense incident happened. If your spouse or your boyfriend or girlfriend is angry at you and is saying nasty things to you in text messages, even if you are saying nasty things back, it helps me to prove later that both parties were angry and upset. It’s much easier for a prosecutor or jury to believe that there was a mutual fight or that you were attacked if I can show mutually angry text messages or emails right before the event that led to the police being called.

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