Statements to law enforcement are a routine part of many criminal investigations. The atmosphere in which a statement is taken is pretty grim. A suspect is placed in an interview room which, in itself, is an inherently coercive environment. These rooms are typically small and engender a sense of being cut off and isolated. Most statements are typically taken by at least two law enforcement officers, so the suspect being interviewed will naturally feel outnumbered. Requests by the suspect during the interview to seek advice from others, such as family members, are denied. In New Jersey, statements are typically recorded in video format. This was not always the case – video recordings became part of the interview procedure because of ongoing complaints concerning abusive tactics by officers conducting the questioning.
But it gets worse than this. Many people think that they can handle themselves in the interview room by simply explaining the underlying situation to the officers present without saying anything that will ultimately undermine their position in any resulting case, and that they will then be allowed to simply leave the facility without being arrested. Generally speaking, nothing can be further from the truth. The officers taking the statement are trained to elicit damaging information from the person being questioned. Further, they have probably already interviewed other people involved in the investigation such as purported victims, and know what they are looking for when it comes time to interview subjects or targets. Thus, alone in an unfamiliar environment, outnumbered, and confronted with officers who have been taught to obtain damaging admissions of wrongdoing and already know something about the underlying facts, many people bury themselves without even realizing it.
A defendant’s statement to law enforcement almost always makes it more difficult to defend the case. The solution to the problems that statements create is simple. Don’t give a statement. A suspect in a criminal case does not have to answer questions from investigating officers, and should refuse to speak to the officers conducting the questioning. Although the suspect will almost certainly be arrested and charged, they have done nothing to strengthen the case against them by giving a statement.
Let’s assume that a suspect failed to follow the foregoing advise and began giving a statement. One way to stop the interview, aside from just a flat-out refusal to continue answering questions, is to invoke the right to an attorney. Once the suspect requests counsel, all questioning should cease. An issue that sometimes arises in this scenario is the manner in which a suspect requests attorney representation. Not everyone says “I want a lawyer now”, which is really all that is required. Suspects have been known to say things that suggest they want an attorney, but the manner in which they articulate the request is unclear. Earlier this year, our Supreme Court addressed this issue in two cases – State v. Gonzalez decided on 2/8/22, and State v. Rivas, decided 6/22/22.
During the interview at issue in Gonzalez, the suspect asked the officers “But now what do I do about an attorney and everything?” During the interview under consideration in Rivas, the suspect said the following at various points in the colloquy: “Ah a lawyer, I need time to find a lawyer. I need to see how much they charge … Do you think that I need a lawyer? Because how you say innocent? … In the beginning, I say I don’t want a lawyer, and then I want a lawyer so.”
The Court’s findings and conclusions were essentially the same in both cases. Both defendants were found to have asserted their right to counsel, albeit in ambiguous terms. As a result, the officers taking the statements became obligated to cease questioning and clarify the ambiguity so as to determine whether these defendants were, in fact, requesting counsel. The statements were suppressed because the officers failed to do this. Thus, even an ambiguous assertion of a right to counsel by a suspect can stop the questioning, and the officers’ failure to clarify the ambiguity can result in suppression of the statement. If a suspect in a criminal case makes the mistake of agreeing to give a statement, any language that the suspect uses during the interview that suggests their desire for an attorney may be a basis to suppress the statement later.
One final word about suppression. Statements are not easily suppressed. If law enforcement follows proper procedures and the suspect says nothing indicative of a desire for an attorney, the statement will probably factor in the case. As noted above, the best way to deal with the problems created by statements is to simply refuse to give one.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents criminal defendants with charges in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States District Courts in New Jersey and New York City.