Oral Confessions and Written Confessions

Some silly people persist in imagining that it doesn’t matter what they say to the police, as long as they don’t sign anything. Yet the Miranda warnings specifically state, “anything you say can and will be used against you in a court of law.” So this shouldn’t be a mystery. However, just to be crystal clear, what you say to cops can be just as harmful as what you write or sign for them.

Here’s how the police gather incriminating statements during a typical arrest:

1.  At the scene of the arrest, the officer reads the Miranda warnings and the suspect fails to invoke his rights. Then the suspect answers the officer’s questions. The officer takes notes and later quotes the suspect (accurately or not1) in the narrative part of the police report.

2.  At the arrest location or at the police station, the suspect is invited to tell his side of the story, in a written statement (see Sample Statements). Sometimes the suspect himself is asked to write the statement, but usually the suspect talks while the officer does the writing. Officers generally edit as they write: leaving some things out, suggesting particular words, or just inserting their own words. Then the suspect is told to sign the statement. Usually the suspect doesn’t bother to read it over, let alone make any corrections; or perhaps the suspect is too frightened or upset to disagree with whatever the officer wrote.

 3. At the police station, if it’s a serious case, officers will question the suspect again. This interview will normally be audio taped, though sometimes the police use videotape. The officer may also seek a longer, more detailed written statement from the suspect.

Naturally, statements on paper or on tape make it harder to defend the case than oral statements. Yet even brief oral statements can be impossible to deny or explain.

1.  Once of my teenage clients was busted on the street and the cops dragged him over to a wall covered with graffiti.  The officer demanded, "Did you write that?"  My client carefully replied, "No, I did not."  In his police report, the officer wrote: "I asked suspect, 'Did you write this graffiti"' and he responded, 'Yes.'" In court, it was the officer's word against my client's - and we were in juvenile court, so there was only a judge and no jury.  Bummer.