I hate to think of how often I have advised a client to give out our card when contacted by law enforcement detectives in connection with an investigation in lieu of volunteering information. While cooperating with law enforcement authorities may seem like a noble and worthy goal, it is not self-evident how the information proffered will be used. You cannot assume that because your criminal defense attorney is not present, that any rights you have with respect to the disclosure will be protected or that because you have cooperated as requested, you will not be subject to criminal indictment at some later time. Further, the investigator or the state’s attorney working with her may have a theory of the case that doesn’t mesh with your conclusions about what may have occurred. As a result, they frequently condense the facts they believe support their theory, summarize it in a statement, and request that you sign it. You may not feel okay about signing it, but decide to do it anyway. You may be thinking, what’s the worst that could happen?
First, the State Attorney’s office may indict you instead of the perpetrators for a number of reasons. They may feel they can absolutely insure your cooperation since you have now signed a statement and you will produce whatever they need since you now have been indicted. They can also control your ability to avoid trial and possibly increase their odds of a win if they can assure your testimony. They will not feel any moral compunction in deciding to charge you with a felony even if they don’t have the evidence to support it; based on their calculations, you may be an easier target to find and convict than the real criminals they are seeking.
For the government attorney, one bird in the hand is better than two in the bush. Whether the government attorney can win a case against you may be more important to them than indicting the actual perpetrators; after all, it may be more difficult to convict the actual perpetrators. Second, you do not enjoy the protections afford by the Supreme Court in Miranda v. Arizona1 unless you are arrested. For example, your rights to not have to be read and they need not advise you of your right to remain silent or to obtain an attorney. Since you voluntarily gave a statement (language in the statement will state that your statement was voluntary), you will not later be able to complain that you did not receive your Miranda warnings and that your constitutionally-protected right against self-incrimination was violated.
The unintended consequence of your effort? Everything you said can and will be used against you, and sometimes in ways you could never anticipate.
1 384 U.S. 436 (1966).