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The Most Important Rule: Do Not Talk

More people are convicted on their own words, than on fingerprints or DNA.

Federal Rule of Evidence 801 and Michigan Rule of Evidence 801 provide that a party (the prosecution) can introduce the out of court words of the opposing party (you), by having someone testify to what they claim they heard you say. Such testimony may be given by a police officer, detective, or any other person. Using such testimony against you does not violate rules against introducing hearsay evidence. While some statements elicited by police or agents can be barred from court (disallowed for use as evidence) with a Motion to Suppress, many cannot. Statements made to private people can get suppressed it VERY limited circumstances – and it is VERY rare. It is best not to get in that situation in the first place.

When you come into contact with police who are focusing on you, your best option is nearly always to remain silent and insist on an attorney. It is usually best to first try giving out as little information as possible, before going to the next step of insisting on a lawyer.

A search warrant can also be based on hearsay statements, but even worse, much of the time you will not learn the identity of the person who made the statements against you. In the application for search warrant, the prosecution will often replace the name of the person with a confidential informant number, such as by saying “CI-2 provided the following information.” While some search warrants can be invalidated with a Motion to Suppress, many cannot. It is best not to get in that situation in the first place. A confidential informant cannot provide information if he does not know any information.

If you are taken into custody, you will be in the company of other people at the jail or police station. You usually will know very little about those other people, but one thing is known: they would rather be out. Some are so desperate to get a break on their own cases that they will try to elicit information from you about your case, often just with ordinary conversation, but sometimes under the guise of being a “jailhouse lawyer” who can help you with your case. Then, they inform their own lawyers that they have important information about you that the prosecutor might be interested in. The other prisoners do not have to give you Miranda warnings, and can pose as your friend. The more serious are the charges against you, the more likely it is that the prosecutor will agree to cut someone else’s sentence to ensure that they convict you.

They actually can do this whether you confess to the crime or not. As the other prisoner learns details about your life, he can create a false story that you did confess.

The less that the other prisoners know about you and your case, the less able they will be able to make up convincing lies against you. They cannot very well say you confessed to bank robbery if they do not know that is what you are charged with. They cannot provide or make up details, such as you saying “Afterwards I dropped off Skinny at 12 Mile and Telegraph then went to Ray’s house in Oak Park” if they do not learn that you know people named Skinny and Yolanda, or where Yolanda’s house is. The details are what make stories of a confession more believable to a jury. For this reason, if you have the discovery from your case (police reports, witness statements, lab reports, etc.), you do not want other prisoners reading it. Once someone reads in the reports that after the shooting a blue Honda left the scene, they could use that to make up a story that you said you were driving a blue Honda.

Be especially wary of other prisoners who say they can help you with your case. As they are not licensed attorneys, you do not enjoy any attorney-client privilege with them, and they can freely reveal to prosecutors anything you tell them. Some of them may have good intentions and will keep your secrets, but with your life on the line, why take that chance? You have a lawyer to help you with your case; assistance from a non-lawyer is usually not needed and not helpful.

It is a natural human emotion to want to talk to other people, and you will surely do that if you are in custody. Good topics for conversation include sports, music, tv and movies, the weather, the rotten food at the jail: anything but details about your personal life and activities. There is no problem with you saying that your lawyer told you not to talk about your case.

Your telephone calls to your people will all be recorded, and sometimes played in court. Using “replacement” words to conceal your instructions or intent often can sound bad in court, as the use of that language can demonstrate guilty intent. As the prosecutor might point out, “Do you really think that when the Defendant made that call, he was actually talking about lemons? Isn’t it clear he was trying to hide something? Is that what an innocent person would do?”

Even if you are not in custody, that is no guarantee against danger from your own mouth. If you are facing charges, agents can often get warrants to eavesdrop on your phone calls and, in some cases, even bug locations where you go.

So yes, even if you are not locked up, you need to shut up. Of course it is hard. You’re innocent, and you want to tell everyone you didn’t do it – friends, family, co-workers, CPS, and most importantly the police. Stop! Do not talk to anyone! Do not answer questions, do not try to offer an innocent explanation, and do not apologize. The conversation or phone call from your neighboor, cousin, friend, ex-wife, the girl you met at the bar last night, the father of your daughter’s BFF, or whoever is accusing you is likely a controlled call – that means the police are listening and recording it, and apologies are twisted into confessions by the police and prosecution. It is important to watch what you say to everyone at all times, in order to prevent something from being twisted round against you.

Other people, themselves facing investigations or charges, and knowing of your predicament, might try to get you to say something they can use as a bargaining chip.

The world of telecommunications and the internet is filled with dangers for people who should be remaining silent. Once something is transmitted on the internet it almost never goes away. It is stored on some server somewhere. Every post on Facebook or Twitter or Instagram, every search on Google, every location you map, every place your phone travels, every call you make, every text you send or receive, every email, every show you watch on Netflix, and dozens of other phone and internet activities leave behind electronic records that last forever, and can be acquired by government agents if they complete the steps to get a search warrant.

Paranoia is sometimes defined as unjustified suspicion of the motives of others. While you want to avoid paranoia, the problem that a charged person faces is that he never knows when the suspicion is justified. It is not comfortable to live in a world where you must be suspicious of others, but if you are facing criminal charges, that is precisely the world you do live in. It is not comfortable to have others think you do not trust them, but it is better to suffer with that discomfort for a few months than to suffer conviction and sentence.

Mark Satawa

Mark Satawa is a criminal defense attorney specialized in forensic DNA,
sex crimes, child abuse, shaken baby, medical child abuse, white collar,
and federal crimes.