Sticks and stones may break my bones, but words will never hurt me.
Remember that old playground saying? It may have been a way to make bullies stop taunting you when you were younger, but when it comes to the law, it’s rarely true. Words often hurt us, in a legal context.
Most of my law practice is split between criminal defense and family law. Back when I was an assistant district attorney, if someone had told me that I would spend more time in a courtroom in private practice than I ever did as a prosecutor, I would have laughed—but the joke is on me! I spend most of my days in courtrooms, either representing my own clients, or watching other lawyers while I wait my turn.
It seems that no matter how many times we (criminal defense attorneys) say it, people don’t listen: Don’t talk to police. Your Facebook friends or co-workers may say that if you’ve done nothing wrong, you have nothing to worry about, but this is simply not true. If law enforcement officers want to speak to you as a suspect in a crime, they are looking for reasons to arrest you. When you sit down and talk to them, you are simply giving them reasons.
Good, honest people who have committed no crimes get caught up in terrible situations. I once represented a business owner, who had a large number of employees, in a police interview because one of his former employees was accused of committing a serious crime. Law enforcement came to the business and threatened to charge the owner as a party to the crime if he didn’t come speak to them. I accompanied him for the interview. Afterwards, my client never heard from police again.
Many people don’t understand how easy it is to become the target of suspicion in a police interview. Hesitating to answer a question could mean that you didn’t exactly understand what was being asked, or that you didn’t remember the details you were asked about, or that you momentarily stopped paying attention to what the officers asked you, or many other things. But when an interviewee hesitates to answer a question, law enforcement immediately interprets it to mean that the person is being deceptive.
Under the stress of a law enforcement interview, many people become nervous. Failing to remember details such as timelines, sensory details (colors, sounds, sizes), or names, is normal, yet police interpret such behavior as lying. Changing details about an event as you remember it is also normal: how many times have you told a story, then as you got to the end of it, you remembered a detail you left out, or a detail you were mistaken about when you first started telling the story? It happens to us all, and yet these common behaviors are viewed suspiciously by law enforcement officers.
Investigators can lie during their interviews to get information out of a suspect. A common tactic is to claim that they already have evidence – DNA, videos, photographs, the statements of other witnesses – to trick people into admitting to things they may (or may not) have done. Officers will appear to agree with you on something that you’re done, as if they, too, would have done it, just to get you to admit that yes, you did what they accused you of doing. To avoid these traps, you need to have a lawyer present when you are interviewed.
It’s not just in law enforcement interviews where your words can hurt you. Many of my own family, friends, and clients are active on a host of different social media platforms, from Facebook to Instagram to Music.ly. I’ve seen activity on social media sites come back to haunt my clients in both criminal AND family law cases. Having a “private” page does not protect you: I have had more than one family law case where “friends” of my client provided the other side with access to my client’s social media accounts. It is quite common that people will share their account login information with their significant other – and if that relationship ends badly, you can expect all of your Facebook messages, photographs, and posts (to everyone, not just your lover) to come out in court.
A note about social media photographs: your pictures speak volumes about you. If you post photographs on any social media platform with alcohol, drugs or drug paraphernalia, weapons, large amounts of cash, or people “throwing gang signs,” you can bet that someone will see them, print them, and use them to accuse you of being an addict, breaking the law, having violent tendencies, selling drugs or stealing property, or joining a gang. I’ve even seen photographs taken out of context, like when teenagers do silly hand signs in their prom photos and someone later accuses them of being in a gang. Remember that in the law, it is often not the absolute truth that matters, but the appearance of guilt. It’s unfortunate, but it’s true.
I’ve read text messages and other communications between husbands and wives that are truly appalling: name-calling, insults, and threats, to name a few. No matter how frustrated you are with your significant other, you should find a better way to release your emotions besides resorting to awful behavior. It WILL come back to haunt you.
Even your posts on forum websites can appear in court. I recently had a client who’d been a member of an online parent’s forum, and her in-laws had found every post she’d ever made and brought them all in to court.
All of this goes to say: once you have written it, or photographed it, and put it on technological media, it’s there forever. Whether it’s a Facebook post, a text message, an email, a blog post, a video, a comment to an article, or anything else, it can be used against you in a court of law if it is found…and “they” can find everything.
Returning to where this all began, the spoken word, it’s important to remember that what you say can be used against you, even when you aren’t speaking to a law enforcement officer. It’s a fact of modern life that you are being recorded all the time, whether or realize it or not. Of course, you are being recorded in police cars, businesses, shops, and restaurants. You’re being recorded on the roads, too, either by dashboard cameras in other drivers’ automobiles, or by government cameras. You’re also being recorded on your telephone calls.
Georgia is a one-party state, which means that as long as one party to the conversation knows that it is being recorded, it’s legal to do so. If you’re feuding with your child’s other parent, be careful what you say. Almost every cell phone can record conversations with the touch of a button, and there are many downloadable phone apps that automatically record all cell phone conversations.
If you’ve been involved in a situation that may lead to a criminal investigation, or if you are approached by law enforcement officers who want to speak to you about a crime (except where you are clearly a victim or a disinterested witness), it’s absolutely essential that you do not talk to anyone: not your parents, not your best friends, not your siblings, not your girlfriend. Statements that you make to family members and friends can be used against you, even if they haven’t been recorded. If you have concerns that you may be interviewed concerning criminal activity, talk to a lawyer. Many lawyers, like me, give free consultations.
Our lives are no longer private. Our words – words of anger, words of fear, words of confusion – live long past the moment we utter them, and they can come back to haunt us in a court of law. Think well before you speak (or post, or tweet, or snapchat), and when in doubt, stay silent and contact a lawyer.