The Police Interview: Why Trying to “Explain Your Side” Can Make Things Worse

One of the most common things we hear from people contacted by police is:

“I haven’t done anything wrong, so I may as well explain what happened.”

It sounds logical. If you know you are innocent, or believe the allegations are inaccurate, why wouldn’t you simply tell police your side of the story?

The problem is that a police interview is not an informal conversation designed solely to give you an opportunity to clear your name. It is an evidence-gathering process, and what you say may ultimately form part of the evidence in a criminal prosecution. Australian legal-aid authorities consistently warn that statements made to police can be used as evidence and recommend obtaining legal advice before deciding whether to participate in an interview.

“I just want to explain what happened”

This is where people can unintentionally make their position worse.

Police investigators may already have witness statements, CCTV, text messages, telephone records or other evidence before speaking with you. You may have no idea exactly what material they possess or what another person has alleged.

During an interview, you might be asked about events from months earlier and feel pressure to provide an answer. If you cannot remember precisely, you may guess. Later, if objective evidence shows something different, what was an innocent mistake can potentially be characterised as an inconsistency.

Likewise, trying to provide lengthy explanations can introduce information that was not previously known to investigators or create additional areas for questioning.

Interview techniques can make people talk

Police interviewers are trained to obtain information, and that does not necessarily require aggressive questioning.

An interviewer may repeat a question in a slightly different way, challenge an answer, present particular pieces of evidence or simply leave a silence after you finish speaking. The natural human reaction is often to keep talking.

None of this necessarily means police are acting improperly. It simply demonstrates why an interview should be treated seriously.

For example, nervous people may misunderstand questions or answer incorrectly, that answers can potentially lead to additional or more serious charges, and that police do not necessarily have to disclose everything they know about an alleged incident.

What about the right to silence?

As a general principle, people suspected of criminal offences in Australia have a right to silence, although there are important exceptions and the precise rules differ between jurisdictions and circumstances. There may, for example, be situations where particular identifying, traffic-related or other information must be provided. NSW also has specific provisions concerning special cautions for certain serious offences.

That is exactly why deciding whether to participate in an interview should not be based on something a friend told you or something you watched on television.

Get legal advice first.

There are circumstances where participating in an interview may be appropriate. There are many others where a lawyer may advise against it. The decision should be based on your particular circumstances.

There is no prize for being the most cooperative person in the interview room

People sometimes worry that refusing an interview will make them look guilty.

That fear can lead them to make one of the most important decisions in their criminal matter without speaking to a lawyer.

Exercising a legal right should not be confused with being difficult or disrespectful. You can remain polite and cooperative with police while still obtaining legal advice before answering substantive questions about an allegation.

Most importantly, remember that once an answer has been given and recorded, you cannot simply take it back because you later realise you misunderstood the question or should have answered differently.

Final thoughts

If police contact you asking to attend an interview, don’t assume that explaining yourself immediately is necessarily the best way to make the problem disappear.

Find out what the police want to speak with you about, remain calm and obtain legal advice before deciding whether to participate in an interview.

At EAS Legal, we regularly advise clients at the earliest stages of criminal investigations, often before charges have even been laid. Sometimes the most important strategic decision in a criminal case happens well before anyone walks into a courtroom.

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