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The most important paragraph if you're not interested in reading the whole thing: Is there an intelligent alternative to lying or telling the truth that we hav

The most important paragraph if you're not interested in reading the whole thing: Is there an intelligent alternative to lying or telling the truth that we have not yet examined? Yes. In our hypothetical interview, you can politely decline to be interviewed by the FBI agent. Tell the agent that you have an attorney and that "my attorney will be in contact with you." If the agent persists, say that you will not discuss anything without first consulting counsel. Ask for the agent's card, to give to your attorney. If you have not yet hired a lawyer, tell the agent that "I want to consult a lawyer first" or that "an attorney will be in touch with you." The absolutely essential thing to keep in mind is to say nothing of substance about the matter under investigation. It is preferable to do this by politely declining to be interviewed in the absence of counsel. If the agent asks "why do you need an attorney?" or "what do you have to hide?" do not take his bait and directly respond to such questions. (Do not even say that you have nothing to hide.) Simply state that you will not discuss the matter at all without first consulting counsel and that counsel will be in touch with him. If the agent asks for a commitment from you to speak with him after you have consulted or retained counsel, do not oblige him. Just respond that you will consult with your attorney (or "an" attorney) and that the attorney will be in touch. And by all means do not get bullied or panicked into making up a phony reason for refusing to talk. You are not obliged to explain your decision to anyone.

ugh 15y ago
These three paragraphs also seem important: “It is crucial to note that affirmatively declining to discuss the investigation in the absence of counsel is not the same thing as remaining completely silent. If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence. Your invocation of counsel, however, cannot be used against you at trial. United States v. McDonald , 620 F.2d 559, 561-64 (5th Cir. 1980). Your refusal to talk substance in the absence of counsel will force the prosecutor to decide whether your information is important enough to justify a grand jury subpoena for your testimony. If the prosecutor responds to your declination by serving you with a grand jury subpoena, this will present you with an interesting range of options such as: 1) testifying; 2) refusing to testify, by invoking the Fifth Amendment privilege against self-incrimination, which broadly applies to anyone , innocent or guilty, facing criminal exposure; 3) testifying (or talking to the government) only after receiving a grant of immunity; or 4) proffering to the government–that is, giving them a sneak preview of what you will tell them if they agree to grant you immunity. The important thing to remember is that declining to speak to the agent in the first place buys you time in which to weigh these alternative strategies with your white-collar criminal defense attorney.” There are no downsides when you decline to talk, it gives you time to take a more considered approach and you can avoid errors you might make in the heat of the moment (when you are most likely stressed and maybe even panicked). I will always decline answering questions, no matter the situation. There might be situations where talking is unproblematic but I don’t want to make that decision on the spot and when I’m stressed. I doubt my abilities to make right decisions in those situations. That’s why I made that decision now, and it’s to take the safest route: I decline.
- Natsu 15y ago
  You've both missed the most damning sentence in the entire document: To begin with, you are not qualified to know whether you are innocent of wrongdoing under federal criminal law. That's what ought to keep people awake at night.
  - Florin_Andrei 15y ago
    If the law was computer software, at this point it would be a giant unmanageable screwball of spaghetti code that would crash daily and would require patches 3 times a week.
    - jbooth 15y ago
      It does, both of those. Except the patches are driven by lobbyist donations or ideological axe grinding rather than fixing defects, for the most part.
      - duggan 15y ago
        So it's exactly like software then :)
    - InclinedPlane 15y ago
      It's worse than that, if the law were software then it wouldn't even run on client machines, it'd only run on specialty hardware in the lab.
    - thehotdon 15y ago
      if ... 1000 dollar fine else if ... 5 months jail else if ... capital punishment else if ... licence suspended else if ... 3 years jail, 20000 dollar fine // handle a few million more cases else you're innocent
      - intellection 15y ago
        Programmatically human law may lose ourselves, insofar conceptualizing reasonability. How might IT giveth direct feel? /end upvote
jpdoctor 15y ago
But also note: Part of why Bernie Madoff lasted so long was that he arrived for an SEC investigation without a lawyer. Everyone in the room thought he had nothing to hide, so they didn't pursue him. Whether we want to admit it or not: It's ingrained that you are inviting an investigator to hassle you further by invoking a right to counsel. (For the record: I think that sucks too.)
- teej 15y ago
  I'd rather not take cues from Bernie Madoff on legal matters.
  - jpdoctor 15y ago
    You missed my point: One strategy that should be safe is telling the god's-honest truth. But even with the truth, you invite a whole lotta hassle by bringing a lawyer. Conversely: Even if you're a dishonest crook, you get the feds off your back by omitting a lawyer. This is not how it should be; It is how it is.
    - hyperbovine 15y ago
      This guy was the former chair of NASDAQ and had friends in high places. Your chances of getting the same red carpet treatment from the Feds are effectively zero. Hire a lawyer.
    - VladRussian 15y ago
      You point is : if you're a talented con artist who was able to con $50B out, then you would mislead/charm/fend off a SEC or any other investigator better than a lawyer. I'm completely agree with you here. For the rest of us - talk to your lawyer first.
    - jellicle 15y ago
      There are hundreds of thousands of people in prison right now who arrived for their interview with the authorities without a lawyer. I'm not sure your theory actually pans out. (Madoff wasn't caught when the SEC first investigated because they thought he was front-running orders, not a giant Ponzi scheme. They were looking for the wrong thing.)
matusz13 15y ago
I remember seeing this talk some time ago - simply titled 'don't talk to the police'. http://www.youtube.com/watch?v=6wXkI4t7nuc http://www.youtube.com/watch?v=6wXkI4t7nuc
- danvideo 15y ago
  yep that's a fantastic video
- tealtank 15y ago
  Ah yes I remember that. Thanks for linking it again.
EGreg 15y ago
What if they bring you in and detain you for not cooperating with the investigation? Under some reason? Are there laws for that?
- 3pt14159 15y ago
  Basically they take a risk when they do that, but they can only hold you for 72 hours (at least here in Toronto). There are avenues that you can take to get back at them for that though, such as class action lawsuits. A Hispanic former coworker of mine was wrongfully arrested then beaten with phone books by some thugs at the Toronto police. He got lucky, it was a case of mistaken identity and even though they found a small amount of weed on him they let him go completely and he was given a card with a cops phone number on it. He has had to use it 3 times since. He's an apprentice tradesman and lives in a poor area of Toronto so when I told him to sue, he said "Sue? For what? Damages? I've been beaten up worse before by the people they're trying to catch. I live in a bad neighborhood and the officer who gave me his car and I have an understanding now." Pretty messed up. When you don't look or sound like the people that know these little loopholes in the system you get to deal with what I consider to be a couple steps up from a mob. Some of them are awesome, for example cops have helped me get out of a snow bank before and didn't write me up for a driving infraction. Some of them are generally nice and will smile at you on the street or laugh with you as they give you a ticket, but they have power and some of them, especially those that have to deal with messed up shit in the ghettos abuse it.
rjurney 15y ago
In practice, such people will often threaten you. They are experts at this, and can easily get under most people's skin. This is why most people fold and give up their rights. Out of fear.
glimcat 15y ago
"Why do you need an attorney? What do you have to hide?" I need one because it was important enough put in the Constitution. What have you got against the Constitution?
mmaunder 15y ago
This is really great advice. I'd just emphasize to be honest about whether you have an attorney or whether "an attorney will be in touch" with him. Awesome article conover, thanks for posting.

ugh 15y ago

These three paragraphs also seem important: “It is crucial to note that affirmatively declining to discuss the investigation in the absence of counsel is not the same thing as remaining completely silent. If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence. Your invocation of counsel, however, cannot be used against you at trial. United States v. McDonald , 620 F.2d 559, 561-64 (5th Cir. 1980). Your refusal to talk substance in the absence of counsel will force the prosecutor to decide whether your information is important enough to justify a grand jury subpoena for your testimony. If the prosecutor responds to your declination by serving you with a grand jury subpoena, this will present you with an interesting range of options such as: 1) testifying; 2) refusing to testify, by invoking the Fifth Amendment privilege against self-incrimination, which broadly applies to anyone , innocent or guilty, facing criminal exposure; 3) testifying (or talking to the government) only after receiving a grant of immunity; or 4) proffering to the government–that is, giving them a sneak preview of what you will tell them if they agree to grant you immunity. The important thing to remember is that declining to speak to the agent in the first place buys you time in which to weigh these alternative strategies with your white-collar criminal defense attorney.” There are no downsides when you decline to talk, it gives you time to take a more considered approach and you can avoid errors you might make in the heat of the moment (when you are most likely stressed and maybe even panicked). I will always decline answering questions, no matter the situation. There might be situations where talking is unproblematic but I don’t want to make that decision on the spot and when I’m stressed. I doubt my abilities to make right decisions in those situations. That’s why I made that decision now, and it’s to take the safest route: I decline.

Natsu 15y ago
You've both missed the most damning sentence in the entire document: To begin with, you are not qualified to know whether you are innocent of wrongdoing under federal criminal law. That's what ought to keep people awake at night.
- Florin_Andrei 15y ago
  If the law was computer software, at this point it would be a giant unmanageable screwball of spaghetti code that would crash daily and would require patches 3 times a week.
  - jbooth 15y ago
    It does, both of those. Except the patches are driven by lobbyist donations or ideological axe grinding rather than fixing defects, for the most part.
    - duggan 15y ago
      So it's exactly like software then :)
  - InclinedPlane 15y ago
    It's worse than that, if the law were software then it wouldn't even run on client machines, it'd only run on specialty hardware in the lab.
  - thehotdon 15y ago
    if ... 1000 dollar fine else if ... 5 months jail else if ... capital punishment else if ... licence suspended else if ... 3 years jail, 20000 dollar fine // handle a few million more cases else you're innocent
    - intellection 15y ago
      Programmatically human law may lose ourselves, insofar conceptualizing reasonability. How might IT giveth direct feel? /end upvote

jpdoctor 15y ago

But also note: Part of why Bernie Madoff lasted so long was that he arrived for an SEC investigation without a lawyer. Everyone in the room thought he had nothing to hide, so they didn't pursue him. Whether we want to admit it or not: It's ingrained that you are inviting an investigator to hassle you further by invoking a right to counsel. (For the record: I think that sucks too.)

teej 15y ago
I'd rather not take cues from Bernie Madoff on legal matters.
- jpdoctor 15y ago
  You missed my point: One strategy that should be safe is telling the god's-honest truth. But even with the truth, you invite a whole lotta hassle by bringing a lawyer. Conversely: Even if you're a dishonest crook, you get the feds off your back by omitting a lawyer. This is not how it should be; It is how it is.
  - hyperbovine 15y ago
    This guy was the former chair of NASDAQ and had friends in high places. Your chances of getting the same red carpet treatment from the Feds are effectively zero. Hire a lawyer.
  - VladRussian 15y ago
    You point is : if you're a talented con artist who was able to con $50B out, then you would mislead/charm/fend off a SEC or any other investigator better than a lawyer. I'm completely agree with you here. For the rest of us - talk to your lawyer first.
  - jellicle 15y ago
    There are hundreds of thousands of people in prison right now who arrived for their interview with the authorities without a lawyer. I'm not sure your theory actually pans out. (Madoff wasn't caught when the SEC first investigated because they thought he was front-running orders, not a giant Ponzi scheme. They were looking for the wrong thing.)

matusz13 15y ago

I remember seeing this talk some time ago - simply titled 'don't talk to the police'. http://www.youtube.com/watch?v=6wXkI4t7nuc http://www.youtube.com/watch?v=6wXkI4t7nuc

danvideo 15y ago
yep that's a fantastic video
tealtank 15y ago
Ah yes I remember that. Thanks for linking it again.

EGreg 15y ago

What if they bring you in and detain you for not cooperating with the investigation? Under some reason? Are there laws for that?

3pt14159 15y ago
Basically they take a risk when they do that, but they can only hold you for 72 hours (at least here in Toronto). There are avenues that you can take to get back at them for that though, such as class action lawsuits. A Hispanic former coworker of mine was wrongfully arrested then beaten with phone books by some thugs at the Toronto police. He got lucky, it was a case of mistaken identity and even though they found a small amount of weed on him they let him go completely and he was given a card with a cops phone number on it. He has had to use it 3 times since. He's an apprentice tradesman and lives in a poor area of Toronto so when I told him to sue, he said "Sue? For what? Damages? I've been beaten up worse before by the people they're trying to catch. I live in a bad neighborhood and the officer who gave me his car and I have an understanding now." Pretty messed up. When you don't look or sound like the people that know these little loopholes in the system you get to deal with what I consider to be a couple steps up from a mob. Some of them are awesome, for example cops have helped me get out of a snow bank before and didn't write me up for a driving infraction. Some of them are generally nice and will smile at you on the street or laugh with you as they give you a ticket, but they have power and some of them, especially those that have to deal with messed up shit in the ghettos abuse it.

rjurney 15y ago

In practice, such people will often threaten you. They are experts at this, and can easily get under most people's skin. This is why most people fold and give up their rights. Out of fear.

glimcat 15y ago

"Why do you need an attorney? What do you have to hide?" I need one because it was important enough put in the Constitution. What have you got against the Constitution?

mmaunder 15y ago

This is really great advice. I'd just emphasize to be honest about whether you have an attorney or whether "an attorney will be in touch" with him. Awesome article conover, thanks for posting.