- Brian Foley
Montgomery County Criminal Defense Attorney - Why you can't talk your way out of Family Violence
Montgomery County Criminal Defense Attorney Brian Foley - Family Violence Attorney - Woodlands Family Violence Attorney.
I get asked all the time by clients who have been charged with family violence, "The police have contacted me and want my side of the story. What should I do?" It also comes in the form "CPS has contacted me and they want my side of the story. What should I do?" There are few truths in an uncertain world. However one of them is that anything you say can and will be used against you by the police and prosecutors.
You should never talk to police about a case where you are the target of the investigation. The only thing that will come of it is that you will provide them with admissible statements which effectively remove the burden of proof for almost every element of the offense. If there is sufficient evidence to arrest you already nothing you say is going to change that. If there is not sufficient evidence to arrest you already then the only thing that can happen is that your statements could provide the remaining evidence needed and lead to your arrest.
Lawyers like myself, judges, and even the founding fathers worked hard to secure your right to not help the government convict you of a crime, don't give it up because you're feeling pressure.
The 5th amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself."
This was later interpreted by the Supreme Court in the famous case of Miranda v. Arizona 384 U.S. 436 (1966) to mean that, "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."
Lawyers like myself, judges, and even the founding fathers worked hard to secure your right to not help the government convict you of a crime, don't give it up because you're feeling pressure. And yet this is the most difficult advice to follow that I give to clients on a regular basis. The most difficult time to follow this advice is when children are involved and a CPS investigation has commenced. Any statement that you make to CPS or ANY OTHER INDIVIDUAL can be used against you in court in a criminal case. Prosecutors can subpoena court or CPS records and use them at your trial.
Judges in CPS cases however can use the fact that you don't testify against you. This is because it is not a criminal case it is a civil matter. In Civil matters, if the witness fails to testify you can hold it against the witness and make a negative inference. Further, the Judge rules on whether the witness can assert his 5th amendment right to a given question. The party may not make a blanket assertion against self-incrimination in a civil case. In re Verbois, 10 S.W. 3d 825, 828 (Tex. App. – Waco 2000).
"The privilege against self-incrimination does not permit a party or witness in a civil proceeding to wholly refuse to submit to a deposition or take the witness stand. Butler, 522 S.W.2d at 197; Speer, 965 S.W.2d at 45. In a similar fashion, the privilege does not permit a party in a suit affecting the parent-child relationship to wholly refuse to submit to a psychological evaluation like that ordered in this case. Upon submitting to such an evaluation however, a parent does not abandon his constitutional rights. Butler, 522 S.W.2d at 197-98; Speer, 965 S.W.2d at 45. 'If an inquiry calls for an answer that might reasonably present a hazard of self-incrimination to the [parent], he may refuse to answer upon the ground of the privilege.'" Butler, 522 S.W.2d at 198; accord Balsys, 118 S.Ct. at 2222; Denton, 897 S.W.2d at 760. In re Verbois, 10 S.W.3d 825, 828 (Tex. App. 2000).
So then we are left with the question, "What do I do? If I don't testify they're going to take my kids." The problem is you are assuming that if you DO testify then they WON'T decide to take your kid. In the process you are giving up an extremely valuable right in fighting your criminal case.
"But she is the crazy one and she attacked me. I have pictures!" These can be helpful in convincing a prosecutor to dismiss the case or showing a jury that you should be acquitted. They are generally of no use in preventing a charge from being filed. Again, if the Police have enough evidence to believe they have probable cause you committed a crime you are likely to be arrested regardless of what you say or do. Police almost always try to get you to make a statement no matter how strong their case. This doesn't mean they haven't made up their mind. You providing pictures from the night in question may only serve to corroborate the fact that you were present and got into a physical altercation with the other person.
"But she is the crazy one and she attacked me. I have pictures!" These can be helpful in convincing a prosecutor to dismiss the case or showing a jury that you should be acquitted.
So in conclusion what is the answer when you are thinking, "Should I talk to the Police (or anyone other than my lawyer) about the facts of my criminal case?" NO! If this doesn't convince you, please watch this youtube video of a lecture on the topic from both a defense attorney AND a former police interrogator who both AGREE TO NEVER GIVE A STATEMENT. In the video the officer basically makes fun of people who he has tricked into incriminating themselves over the years.
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