Can A Statement Be Used Against You If You Weren’t Arrested?

Imagine this. You’re at the bar with your friend, and someone punches your friend. Your friend gets in a fight, defending themselves, and the police show up, and you weren’t involved at all, maybe, though, another guy, the other guy’s buddy, trying to intervene there, and you just push them to get them away. The police show up and they ask you to give a statement. You’re not under arrest. Let’s say your friend’s been arrested. The police say, Well, you’re a witness. We’d like you to give a statement. What should you do in that circumstances and what? How could it come back to haunt you, potentially? Well, first of all, you’re not a suspect, you’re not under arrest, and the police in this circumstance do not have an obligation to caution you. A caution means whatever you say to me can be used against you in court. So you don’t have to give a statement. They don’t tell you about your right to remain silent. They don’t have to give you right to lawyer. So you have to make a decision whether to give a statement or not, and you may feel, look, come on, I have a moral obligation. I want to help my friend. And most people in that situation will but can it come back to haunt you? It could potentially like, let’s go through that. So first of all, you don’t have a legal obligation to give a statement. You could say, for example, to the police, look, I want to speak to a lawyer first. You could then get your ducks in a row and help your buddy in another way by, you know, thinking about your statement, writing it out, meeting with that person’s lawyer because he’s already under arrest, because now you’re giving a statement in the heat of the moment, you may say things that are inconsistent, because it’s hard to get your ducks in a row all at once when you’re under extreme stress. So it’s a difficult decision to make. I know in that situation, I might say the police officer, yes, I’m prepared to give a statement, but I want to draft it out and get it done, or it might actually give it to the defense lawyer, but that’s up to you. A lot of people in that situation will give it. But how could it come back to haunt you though? Well, the police may not think you’re a suspect at that time, but when they speak to the other side, they may implicate you. Now, you’ve given a statement, and let’s say it’s not fulsomely done. You didn’t think it through you missing things is inconsistent. So you’re at your trial a year later, you’ve been charged, and that statement can easily be used against you. There’s no way of getting it out. You didn’t have a right to lawyer because you weren’t a suspect at the time. You weren’t caught. There was no need to do a caution. You get up in the witness stand, and now the Crown Attorney, when they cross examine you, your defense lawyer calls you, but when the Crown Attorney cross examines you, there’s all these inconsistencies still. Oh geez, I forgot to say that, it was the heat of the moment. I had a few beers. I was nervous when I took the statement. And you can kind of it can really back fire on you because it’ll, you know it can be used to really convict you by challenging your credibility because you just forgot certain things or said certain things a certain way. So you have to be very careful in this situation. You can always give a statement down the road, by the way, and that’s your decision at the time to make.
How else could it be used against you? Well, let’s say you’re not charged and you want to help out your buddy and testify, and you’re subpoenaed by defense counsel to go. Well, the crown now has that statement in their hands, and you go and testify at the trial a year later, and you’re saying all these inconsistent things because you didn’t get a chance to really think it through, because you’re giving a statement. A police officer did it, you know, writing notes down a certain way in the bar, and it’s just really a bit of a quagmire. So it’s a pretty it’s a difficult situation to be in.

The third way, it can be used against you. God help you. Never lie to the police, because if you give a statement in that situation, and you’re trying to help out your buddy, and you decide to lie, well, the police may figure that out. They may have been I was showing that you could get charged with public mischief, obstruct justice. Those are pretty serious crimes, so either you give a statement and tell the truth, or don’t give a statement. That’s my advice as a lawyer to you, and you have all the time in the world to give a statement. You could think about and say, look, I’m going to give one, but I want to think about it. I’m going to write it out, provide it to you, or no, I’m going to give it to my buddy’s defense counsel. I’d rather not give a statement. Those are all things that you might want to consider at the time. That’s totally up to you. I can’t tell you what to do as a officer the court, defence lawyer’s are officers of the court. I can’t tell you not to give a statement of police. That’s totally up to you. It is your right to remain silent though. You have a right to remain silent, you can ask the police, for example, look, Am I under arrest? Am I free to go? I’m not prepared to give a statement. Totally up to you. What’s your moral obligation? How are you going to think this out? Do you want to help out your buddy later, maybe giving the statement to the defense counsel, as opposed to police, all different considerations. But know this, sometimes giving a statement to police, even when you’re telling the truth, can come back and haunt you a little bit. God help you if you’re lying, and God help you if you get charged based on the statement and now you’ve kind of screwed yourself, because in court a year down the road, it’s going to be hard to tell the same truthful story the same way every time. I say this to people, even the most truthful witness in the world, if you give an initial statement and you’re testifying a year later, it’s very difficult to tell even a truthful story the same way every time. And what crown attorneys and defence lawyers do in court, is challenge people on these statements to say, look, they’re not a credible and reliable witness, because there’s all these inconsistencies even though you’re truthful and telling the story as exactly as it unfolded. So there you have it. There’s a little (unaudible) about that particular topic, but I think you have three choices in this situation to a police officer. You can decide to say nothing. That’s your right, that’s up to you, not me or anyone else in the world. Or you could tell the truth there make sure you do when you give a statement, knowing it could come back to haunt you in certain ways, possibly. Or you could say, look at I’d rather speak to a lawyer first, before I decide to tell the truth, before I decide to give a statement. And you can consult with a lawyer and give a statement later, either the police or to your buddy’s defense lawyer, for example. In that way, it’s a little bit more controlled and you get time to sit down and rethink things out so that there’s no inconsistency, and then you can truthfully testify a year later at the trial in a manner that’s consistent with the statement you gave the defence lawyer. Totally up to you. As a lawyer or anyone in society, cannot tell you what to do, but you have a right to remain silent. Think this out and think it through and help your buddy in the way that you want in a truthful manner. Boy, I’ll tell you, we had a great day of doing videos today. This is the last one. It’s a wrap up. And really enjoyed it. And thank you for joining me all day for these videos.