An article in today’s Washington Post repeats an assertion I hear all the time: that only a criminal with something to hide would decline to talk to a prosecutor.  This common belief undermines two fundamental American principles: the presumption of innocence and the constitutional right against self-incrimination.

The Miranda Advisory says that statements “can and will” be used against you, not “could and might be.” Here’s why: police, prosecutors, and investigators cannot repeat something a suspect says that’s exculpatory because it’s inadmissible hearsay.  But if why you say is incriminating, it’s a “Statement Against Penal Interest,” and it is admissible and will be used against you.

I happen to be a skilled cross examiner, but it doesn’t take decades in a courtroom to get someone to make contradictory and, therefore, incriminating statements.  Tell me, without looking at your calendar what you did last Thursday night.  Now, imagine that if you modify that in any way (you remember that you also picked up your dry cleaning on the way home) or if you were simply wrong (“that was the Thursday, before last, bowling was canceled last Thursday!”) you’ve given inconsistent statements that impugn your credibility.

Everybody could be in a position to be invited to talk to prosecutors and roughly one-in-four is actually confronted with that choice.  The numbers on convictions of innocent people are staggering but for a well-known example, look at the Central Park (Jogger) (Five) case.  Using the infamous Reid Interrogation Technique, the police got five innocent people to confess to rape, assault, and attempted murder just by mining inconsistencies in their statements.  All were later exonerated and released . . . after spending ten to twenty years in prison.

It is not a sign of guilt or lack of confidence to politely decline to talk to police without an attorney present.  It’s American!