Hi! Great to see you again. Have a seat. Get you anything? Coffee? Diet Coke? Stroopwafel? Anything? No? Okay, well, the offer’s open if you change your mind.
Listen, here’s why I asked you to come in today. As your lawyer1, I thought I should remind you of the legal advice2 we discussed a few months back. Specifically… look, it’s just that…
/sigh
My man. You need to shut up.
Weirdly, one of the most important lessons in the area of criminal law isn’t something that’s explicitly taught in the average Criminal Law class. CrimLaw teaches first year law students about elements of various crimes and the required mental states and defenses and attempted crimes and conspiracy and Constitutional principles a bunch of other really important stuff. The stuff your favorite legal dramas and courtroom procedurals are built on.
But it turns out the most important lesson in the application of criminal law is this: Shut. Up. In an adversarial proceeding (like, say, a criminal trial), make the other side earn every inch. Offer nothing. Don’t tell them what you were doing on Tuesday. Don’t concede that you were alive on Tuesday. Don’t concede that Tuesday existed at all.
You see, no matter how good I am as your lawyer3, if I walk into the room with my law school arguments about mens rea and the five theories of criminal punishment, and the prosecutor walks in and hands me your signed confession, along with the drawing you doodled depicting you committing the crime (complete with helpful labels and captions), your ass is going to jail.
There are two human weaknesses that are almost universal: 1) we view ourselves as the protagonist of every story, and 2) silence makes us very uncomfortable. And one of the most common legal tactics (whether in a deposition, an interrogation, or a contract negotiation) is that an attorney will ask a question, receive an answer, and then… nothing. Silence. No follow-up question. Just an expecting pause. They create an opening for the other person to explain or elaborate or defend their answer. At last, after answering a bunch of questions that that seemed unfair or painted them in a negative light, the witness finally has a chance to explain her side of the story. Doing so makes the witness feel like she is helping. But she is almost certainly not helping.
What should the witness do? That’s right. Shut up.
Not Shutting Up is how you get a situation like Alec Baldwin — a grown man with enough money to hire an Eastern Michigan home football crowd-sized group lawyers — managing to talk himself into a manslaughter charge:
You know what Alec Baldwin should have done? That’s right. He should have shut up.
Repeat after me: talking to the the police CANNOT HELP YOU. That’s not hyperbole, either. Do you know why the famous Miranda warning only says that “anything you say can and will be used against you?” That’s because it can’t be used for you. Things a defendant says out of court (whether to the police or to someone else) are hearsay, and hearsay is typically not admissible as evidence. However, there is an exception for something called an “admission by a party opponent,” which means that if the defendant says something DAMAGING, the prosecution can use it as evidence. But there’s no corresponding “but what about all the times the party opponent DIDN’T crime” rule, where you get to introduce the good stuff you told the cops.
It’s hard to blame the police on this one. It’s their job to find people who commit crimes. So when they pull your car over and ask, “do you know why I pulled you over,” you should hear that as “would you like to confess to anything right off the bat, because that would be SUPER helpful”.
So, here is my best legal advice4 as to what NOT to do.
Do not answer any questions from the police without a lawyer. Ever. Oh, you don’t think you did anything wrong? Well that’s fantastic news! And of course you know exactly what the police are asking about, and why, and exactly how the law works in this area, yes? Cool. And I’m sure you can convince the police, who are known for their tendency to give suspects the benefit of the doubt. Although, that’s probably what countless people who falsely ended up confessing to crimes thought. According to the Innocence Project, of all of the Americans who were convicted of crimes but subsequently exonerated by DNA evidence, 29% had falsely confessed to the crime. But I’m sure you’re built different.
Do not consent to any search. Ever. Best case scenario: they don’t find anything, which puts you exactly back where you started. Oh, what’s that? You don’t have anything to hide? Oh, okay. But do you have any solids, liquids, gasses, plasmas, or Bose-Einstein condensates in your car? Well you’ve better hope those don’t test positive for drugs. Georgia State quarterback Shai Werts was arrested a few years ago for cocaine possession after the cops found a cocaine smear on the hood of his car (where all cocaine-doers keep their cocaine)… until a lab later confirmed that the cocaine was was bird poop. (Seriously, the list of things that have triggered false positives in field tests is staggering.)
Do not do any interviews with people OTHER than the police, either. That stuff is admissible in court too. So, as an example, if your crypto scheme that kiiiiiiinda looks like it might have been a massive Ponzi scheme crashes in a manner that might sorta violate a metric shit-ton of laws, maybe don’t give an interview to the New York Times and an interview to Forbes and an interview to the BBC and an interview to ABC’s This Week and an interview with New York Magazine and host a Twitter Space and host another Twitter Space and post a 22-tweet Twitter thread and OH MY GOD HE JUST STARTED A SUBSTACK. It is a high bar, but it is possible that no one in history has ever needed to shut up more than Sam Bankman-Fried needed to, and still needs to, shut up.
Do not livestream your crimes. I wouldn’t have thought I needed to specify this one, but if you should choose to commit a crime, I would strongly suggest that you not record yourself committing this crime and send that recording live to the entire Internet. You know who else has Internet? The police.
Similar to the previous point: if you find yourself in a situation where you have recently crimed, do not go on social media and describe your criming. You know who else has access to social media? The police.
Do not… /checks notes/… oh holy shit do you really need your lawyer5 to tell you “If you are currently involved in a trial, do not go on your radio show — the radio show at the very heart of your trial — and call the judge a demonically possessed Dwarf Goblin?”
/sigh
Fine.
If you are currently involved in a trial, do not go on your radio show — the radio show at the very heart of your trial — and call the judge a demonically possessed Dwarf Goblin.
Importantly: all of the above applies even if the police are acting in complete good faith. Which, uh… yeah let’s discuss that another day.
not your lawyer
not legal advice
not your lawyer
not legal advice
not your lawyer
seriously i am not your lawyer and none of this is legal advise
seriously