The oppressive nature of the interview
Interviews. It can be said that the case is won or lost there and not often in the trial itself. So in that context, how should you behave in the shock, the embarrassment, and the frustration of having just been arrested and being in a cell waiting to go into interview?
What should one be prepared for going into a police station? My answer to that is that you can never be prepared for the oppressive regime you walk into. The oppressive atmosphere. Its an adversarial system, not an inquisitorial system, so whatever they might say in interview, they are not trying to get to the truth of the matter necessarily. They are there to prove guilt.
The police often provide only partial disclosure
The police are under a duty to provide the person who has been arrested with disclosure. Now the purpose of the disclosure, it can be provided to you in either written or oral form, is to provide you with a summary of the evidence they think they have against you. Now what we are finding more and more recently, particularly in complex cases and complex conspiracy and serious cases such as murder, is that tactically the police are only disclosing small bits of evidence at the very beginning. If they are able to ask you questions based on limited disclosure, and suddenly after you have made a comment, produce a piece of evidence that contradicts what you’ve already said, they can make you out to sound like a liar.
Your right to silence
Its also very important to realise that you have a constitutional right to silence. Something that goes back hundreds of years. A lawyer or legal representative should be saying to the police officer, ‘Have you got sufficient evidence to charge my client?’ If the answer is, ‘yes we have’, then you say, ‘My client is going to say nothing. Charge him.’ If they say, ‘We do not have sufficient evidence,’ then you say, ‘What is the evidence that you have?’ And they are under a duty to disclose. If they refuse to disclose, well you are entitled to remain silent.
Limited disclosure by the police
So that is why often solicitors whilst at the police station will get the limited disclosure provided by the police officers, and as a result of that advise the client to provide a no-comment interview. And put that on the tape. When you are being introduced you say, ‘Can I say something first. I have had only a limited disclosure. I have advised my client to not answer any questions until we have had full disclosure.’ With limited disclosure the police are essentially trying to catch you out with a view to later use that against you when prosecuting.
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