By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Should I Speak To The Police When They Want Me To Hear “My Side Of The Story?” While it may seem like it is a fair exchange – having the police hear your side of the story – the truth is the Colorado criminal justice system is an “adversarial system.” Most likely the police have already made up their mind that you are guilty of the crime or crimes being investigated.

Never – Ever – Ever – Speak To The Police Without At Least The Advice Or Representation Of A Lawyer

If you are under arrest there are rules of law that apply to any statements of guilt of which you should be aware. These are known as inculpatory statements made during a custodial interrogation. The constitution provides that the government cannot use illegally compelled confessions or other inculpatory statements.

 A Suspect’s Statements Must Be Voluntary

The due process clauses of the United States and Colorado constitutions provide that a defendant’s inculpatory statements made while in custody must be voluntary to be admissible into evidence at trial. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25.

Coercion Can Not Be Used To Obtain A Confession

Guilt beyond a reasonable at a Colorado criminal trial must be established by evidence that has been both independently and freely secured without law enforcement resorting to coercive tactics. At the suppression motions hearing – the defendant must lay out a minimal case of coercion – the burden of proof then shifts to the prosecution to prove that inculpatory his or her statements were involuntary.

To be voluntary, a defendant’s statement must be the product of a free and unconstrained choice by its maker. A defendant’s statement cannot be the product of any direct or implied promises, or obtained by exerting improper influence. One example of an illegally obtained statement is an implied promise of protection from physical violence.

Furthermore coercive physical or psychological conduct by the government renders an otherwise voluntary statement involuntary if the conduct plays a significant role in inducing the statement.

If the government is involved – the focus of the voluntariness inquiry is whether the behavior of the official was of such a nature as to “overbear the defendant’s will to resist and bring about an admission or inculpatory statement not freely self-determined.”

That burden of proof, that the defendant’s statements were voluntary is only by the “preponderance of the evidence” standard (51%).

The Role Of The Miranda Warnings – Miranda Alone Is Not Enough

If a defendant has been given Miranda warnings – the waiver of these warnings are only one of the factors the judge will consider on the issue of the voluntariness of a statement. Miranda does not insulate an improperly obtained confession from an inquiry into whether the statement was voluntarily given.

The Tests Applied By The Judge To Establish Voluntariness

The question for the judge at this suppression hearing is:

…”whether, under the totality of the circumstances, the behavior of the official was coercive so as to overbear the defendant’s will in making the statements.”

This “voluntariness doctrine” requires a two-step inquiry.

First, the police conduct must have been coercive. Coercive physical or psychological conduct by the government renders an otherwise voluntary statement involuntary IF

Second, the coercive police conduct played a significant role in inducing the statement.

The judge is not required to find the defendant actually confessed to a crime after the police coercion to find that the defendant’s due process rights have been violated.

Courts determine voluntariness of the statement by a consideration of the totality of the circumstances under which the statement was given, looking at the significant details surrounding and inhering in the interrogation under consideration.

What Then Is The Totality of the Circumstances Test?

Courts look at both the defendant’s ability to resist coercive pressures and the nature of the police conduct, using a nonexclusive list of factors when making a voluntariness determination:

The Judge will consider the following (nonexclusive) list of factors:

(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

(3) whether the defendant was aware of the situation;

(4) whether the police read Miranda rights to the defendant;

(5) whether the defendant understood and waived Miranda rights;

(6) whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;

(7) whether the statement was made during the interrogation or volunteered later;

(8) whether the police threatened [the] defendant or promised anything directly or impliedly;

(9) the method of the interrogation;

(10) the defendant’s mental and physical condition just prior to the interrogation;

(11) the length of the interrogation;

(12) the location of the interrogation; and

(13) the physical conditions of the location where the interrogation occurred.

 The Conclusion If You Win – The Statements – Confession Is Suppressed – Cannot Be Used At The Trial On The Charges

If the Judge concludes that a defendant’s statements were made involuntarily, they must be completely suppressed—they may not be used either as substantive evidence or for impeachment purposes should the defendant take the witness stand in his own defense.

Should I Speak To The Police When They Want To Hear “My Side Of The Story?”

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-2277.

If you are charged with A Colorado crime or you have questions about Should I Speak To The Police When They Want To Hear “My Side Of The Story?,” please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

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Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving the topic…Should I Speak To The Police When They Want To Hear “My Side Of The Story?”