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Don’t Ever Talk to the Police! Never Give a Statement to Law Enforcement in Texas Criminal Investigation

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Additional Information Provided in Addition to my YouTube video

On television and in the movies, people are always giving statements to the police.  In all the versions of Law & Order, for instance, the police are taking statements from people with or without their lawyer being present.  In fact, it’s hard to remember an episode where a police officer did not take a statement in that show.

It’s frustrating for criminal defense lawyers to watch all these TV shows and movies, and know the public may assume giving a statement to the police is an acceptable thing to do.  It’s not.


 

Don’t Ever Talk to the Police!

That’s why I’ve made this YouTube video (above) where I explain in detail why I ask that my clients don’t talk to the police in state criminal investigations.  Never are they advised to give a statement to the police who are involved in investigating a crime under Texas law.

Why not?  Why am I so adamant?  I explain both my summary view at the beginning of the video for never giving a statement to the police, as well as later going into an application of game theory, using a decision matrix to explain every possible scenario and outcome with respect to police investigations in state criminal matter.

Of course, the video is provided as a public service and cannot serve as legal advice in your individual case.  If you want to discuss hiring me as your attorney, there is information on how to contact me here on my site.

In tandem with this video, I’m providing more details here.

 

1.  Texas v Federal Investigation: Video is limited to State Investigations

In the video, my discussion is limited to investigations where the police are looking into whether or not someone has violated a state criminal law.  Of course, here in Texas there is the chance that law enforcement may be investigating for violations of federal law, as well.

That’s because there are two independent criminal jurisdictions in Texas: the criminal laws defined under state law (many found in the Texas Penal Code, but not all) and those crimes defined by federal law (for instance, the federal Controlled Substances Act of 1970, found in 21 U.S.C. 13 § 801 et seq.)

My discussion focuses solely upon state investigations.  That’s because the federal cases are handled differently than state investigations.  They are also prosecuted differently.  In federal cases, the AUSA (Assistant United States Attorney) is usually hands-on and involved in the investigation process.

Federal Criminal Investigations in Texas

Here in North Texas, the United States’ Attorney’s Office for the Northern District of Texas describes itself as serving “more than seven million residents in 100 counties that encompass nearly 96,000 square miles in northern and western Texas.”  Headquartered in Dallas, the Northern District of Texas covers most of our area with branch offices in Abilene; Amarillo; Fort Worth; Lubbock; San Angelo, and Wichita Falls.  It’s a big office dealing with federal criminal investigations over this entire area.

State Criminal Investigations

However, under state law we have smaller areas of authority.  Each county has its own District Attorney’s Office where criminal investigations can be prosecuted by the District Attorney’s Office of Dallas County; the District Attorney’s Office of Tarrant County; etc.  These offices may also have their own investigators on staff to work on criminal investigations.

State investigations can also involve the Office of the Attorney General for the State of Texas, where state agencies investigate criminal acts, like the Texas Department of Public Safety, as well as the Attorney General’s own Criminal Investigation division with offices in in Austin, Houston, Arlington, San Antonio, and El Paso.

It is also possible for state criminal investigations to be undertaken by county agencies (like the Dallas County Sheriff’s Office); city agencies (like the Fort Worth Police Department); and even agencies at colleges or universities (e.g., Southern Methodist University Police), and local independent school districts.

In the video, I am discussing investigations that may involve police officers, sheriff’s deputies, university police, Texas Rangers, or any other state government investigator trying to build a case based upon state criminal law.

2.  What is a Statement?

Texas Penal Code Sec. 37.01(3)  defines a “statement” as “any representation of fact.”  That’s a pretty broad definition.

Moreover, the Texas Legislature has made it a crime (Class B Misdemeanor) to give a “false report to peace officer, federal special investigator, law enforcement employee, corrections officer, or jailer” under TPC Sec. 37.08.  Specifically, TPC 27.08 states:

(a)  A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

(1)  a peace officer or federal special investigator conducting the investigation;

(2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation; or

(3)  a corrections officer or jailer.

(b)  In this section, “law enforcement agency” has the meaning assigned by Article 59.01, Code of Criminal Procedure.

3.  What is an Investigation?

In my video, I am discussing criminal investigations that take place before anyone has been arrested for a crime.  These “pre-arrest criminal investigations” usually begin when someone contacts the local police or sheriff’s office and files a complaint where they assert they are the victim of a crime.

The complaint is the cornerstone of the pre-arrest criminal investigation.  A detective will be assigned to the case.  He or she may work for the Dallas Police Department, for instance, or for the Tarrant County Deputy Sheriff.  This detective will consider the complaint, researching the state criminal laws for what crimes may have been committed and what are the legal elements of those crimes which must be proven with evidence.

Afterwards, the detective will begin to look for facts that can be used as evidence of these elements.  It’s like a recipe:  the detective will begin “shopping” for the things that the prosecutor will need to “bake the cake.”

He may gather documents (like bank records).  He may gather statements off of social media.  He may also seek out people who might be witnesses or persons of interest in the case.  Here, he will want to get “statements” from the individuals to place into the investigation file.

It has been my experience that the detective will wait to ask for a statement from the person he or she thinks committed the crime until the very last.

There’s no law preventing this detective from showing up at your home, or your place of work, or your child’s recital or soccer game, to ask for that statement.   Even if it embarrasses you – or worse yet, hurts your reputation or costs you a promotion, there’s nothing stopping law enforcement from doing this (unless you’ve got an attorney helping you to block this in advance).

For more on how criminal investigations can cause permanent harm, see:  Unjustly Accused of Sexual Assault: When Rape Allegations Aren’t True There’s Still a Victim.

4.  What is Probable Cause for Police to Arrest?

The detective is looking to arrest someone for the crime that has been defined by the complaint.  In order to arrest someone, the detective must have “probable cause” to do so.  This is a legal term, and there has been a lot of court cases filed with the appellate courts arguing that law enforcement jumped the gun or exceeded their boundaries when they arrested someone based upon “probable cause.”

The United States Supreme Court made it clear in defining “probable cause” to arrest; the detective can only arrest if he can show the following:

  1. Facts and circumstances (evidence gathered in his file) that
  2. Makes it more likely than not that
  3. The person being arrested either (1) has committed or (2) is committing
  4. A crime as defined by law.

Carroll v. United States, 267 U.S. 132, 161-162, 45 S. Ct. 280, 69 L. Ed. 543 (1925).

That’s the goal.  It’s a pretty low burden of proof (more likely than not).

5.  The Police Can Lie to You and It’s Okay

One thing that the crime shows get right (have you ever watched “The Closer” for example?) is that it is perfectly acceptable for the detective to lie to people during the course of the investigation.

It is a crime in Texas to lie to the police.  That’s a one way street.

There is NO state statute or Texas court case that prohibits a detective from doing things like outright lying as well as manipulating a suspect, or really saying and doing whatever pops into their heads if they are trying to get a statement that implicates the person as having committed a crime.

  • The detective can say things that are just flat untrue, like they have evidence that the person was at the crime scene, or a video of him participating in the crime, etc.;
  • The detective can be comforting and friendly and assure that he’s only wanting to chat and there’s nothing formal about talking with him or her;
  • He may say there is an eyewitness;
  • She may lie and say she will arrest if a statement isn’t given; and
  • She may suggest that she will reduce the charges if a statement is given (which only the prosecutor can do, not the officer).

From my experience, the detectives are trained to LIE and to manipulate during their investigations.  Law enforcement officers are simply NOT trustworthy.

Many are so unreliable that the prosecutors have lists of names of police officers they don’t trust to put on the witness stand.  See our earlier discussions in:

6.  Detective’s File Is Not Required to Be Revealed to the Defense

In Texas, the detective’s investigation file is treated differently than the file that is being handled by the prosecutor.  The defense has a right to look at the prosecutor’s file – but that is after an arrest has been made and charges have been filed.

Before the arrest, when the detective is snooping around asking for statements, that file is kept close to his vest.  The defense attorney cannot double-check what is going on – for the very lies and manipulations that the detective may well be using to try and get someone to give him a statement.

For more on discovery access to a file by the criminal defense lawyer, read our discussions on the Michael Morton case and its resulting “Michael Morton Act” requiring disclosure:

Never Talk to the Police!

Again, neither this article nor my YouTube video is personal advice to anyone.  There’s no attorney-client relationship here.

Both are being offered as general public information, because I’m trying to my part to get the truth out and balance against public perceptions based upon crime fiction.

I’m speaking from experience, and not just as a criminal defense attorney who has achieved Board Certification in Criminal Law representing thousands of defense clients over the past couple of decades or so.  I’m also speaking from my past years as a prosecutor, where I worked with detectives and police officers all the time in building cases and prosecuting defendants.  I’ve seen the man behind the curtain, as it were.

It does not matter if you are innocent or guilty when asked to give a statement by any member of law enforcement.  That is not the issue.  It is a matter of strategy and protection.

From a criminal defense standpoint, everyone should exercise their legal right to decline to give a statement because this is the best strategy in dealing with state criminal investigators in order to avoid arrest.  They may or may not have a legitimate case and may or may not be able to show probable cause.  Don’t help them hurt you.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles” Pre-Arrest Criminal Investigations” and “10 Questions to Ask Before You Hire a Criminal Defense Lawyer.“

 
Posted on by Michael Lowe , on Arrest and Indictment, InDepth Articles, Texas Government Watch

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