Behind Enemy Lines: Voluntary Police Interviews in Sexual Assault Investigations

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It’s up there with one of the worst phone calls you can get—a detective from the Washington, D.C. Metropolitan Police Department (MPD) informs you that you’re under investigation for a sexual assault. You believe you haven’t done anything wrong, but someone has accused you of an inappropriate sexual touching or worse. And now the detective wants you to come down to the station and “tell your side of the story.” The unfortunate instinct for many is to rush right down to the police station, straight into the belly of the beast. This is a mistake, and one that may cost you your reputation and your freedom.

A detective investigating a Washington, D.C. sexual assault has one of two motives when he reaches out to the target of that investigation. First, he may believe that he is close to having probable cause to seek an arrest warrant, and hopes that a target will come down to the station and confess or at least corroborate some of the details provided by the accuser. In those cases, voluntarily speaking with the detective is akin to signing your own arrest warrant. Your own words may be the final piece of the puzzle needed by the detective to get that warrant. And those words will absolutely be used against you if your case goes to trial. Your right to remain silent is a bedrock of constitutional law, and you need to carefully consider the implications of giving it up.

In some cases, however, the detective may not simply be out to get you, and may have a more benign motive for requesting an interview. He or she may be on the fence about whether to seek a warrant, and may have some doubts about the credibility of the accuser. In that scenario, the detective may be giving the investigation target a genuine chance to set the record straight and prevent the case from moving forward. The trouble is, it can be difficult to tell what the detective’s motive actually is.

While it is a general rule of thumb that a criminal defense lawyer should not allow a client to give up his right to remain silent, there are exceptions. Not all cases or defendants are created equally, and having a blanket policy against speaking with the police will do a disservice to some clients. But a decision to speak should never be taken lightly, and certainly not without a thorough risk/reward analysis. Your lawyer (and if you are reading this and even considering making this decision by yourself, stop now and call a lawyer—preferably me), will go over your version of events in great detail, assess your believability, and determine whether cooperating is likely to help or hurt.

In most cases, a defense lawyer doesn’t care whether his client is innocent or guilty—he only cares about what the evidence shows, and what the government can prove. This is not the case, however, when assessing whether an investigation target should speak with police prior to a warrant being issued. Then, your lawyer will only advise you to speak with the detective if he actually believes that you have not done what you are accused of. The logic is simple: if a client is innocent, then he can go down to the police station and tell the truth. If he isn’t, then he will be planning to go down there and lie. And that is a bad idea. Detectives are trained to tell when someone is lying to them—it’s half of their job, and many are good at it. So clients who think that they will be able to lie their way out of trouble are probably wrong, and will likely make the biggest mistake of their lives if they walk into that police station.

At the end of the day, your lawyer may not be able to prevent a warrant from being issued, regardless of whether he advises you to talk or remain silent. The evidence may simply be too compelling for a detective to avoid filing charges, or he may be under pressure from complaining witnesses to close the case. But preventing you from making statements that come back to haunt you at trial can mean the difference between a conviction and an acquittal.

If you have been contacted by police about your involvement in a crime, you should contact a criminal defense lawyer immediately. While it may be tempting to go it alone, the stakes are simply to high to navigate an area in which you have no previous experience. If you are under investigation in Washington, D.C. or northern Virginia, contact Jay Mykytiuk, Trial Attorney for a consultation.

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