In the U.S. criminal justice system, building a case against a criminal defendant requires the gathering of physical evidence (such as a weapon or stolen property discovered in the defendant’s possession), forensic evidence (such as fingerprints or DNA that would link the defendant to the crime), and face-to-face questioning of witnesses and potential suspects.
Law enforcement, investigative, and prosecutorial staff are expected to operate in good faith when building a case. But what powers do they have, and what are their limits?
Interview vs. Interrogation
To answer this question, we have to look first at the information-gathering process itself. Generally, when a crime is reported, the first on the scene are police officers (sometimes accompanied by detectives). Crime scenes are often chaotic, so officers must assess the situation quickly, and begin the process of information gathering. They may ask witnesses to provide their names, addresses, and an account of what they saw. People with firsthand knowledge of the crime may be asked to provide an interview. This is usually done in an interview room at the police station, but not in lock-up. Interviews are conducted informally and are intended to gather information rather than to make a direct accusation. If, however, evidence or witness reports link an individual to the crime, that person (or persons) may be detained for interrogation. Interrogation is a more adversarial form of questioning that assumes the person being detained is resistant to providing a full and true account of events. And it is during interrogation that officers, detectives, and prosecutors are allowed some latitude to help them build a case.
What Police & Prosecutors Can (and Can’t) Do During Interrogation
The purpose of any police interrogation should be to get to the facts of the case, not simply to secure a conviction. But investigators and prosecutors are allowed some leeway when building their cases.
What They Can Do
- Police can tell a suspect that an accomplice has already implicated the suspect in the crime, even if they have not. (see Frazier v. Cupp, 1969)
- Police can claim to have fingerprints linking a suspect to the crime scene, even if they have no such evidence. (see Oregon v. Mathiason, 1977)
- Police can claim they have DNA evidence or surveillance images of the suspect, even if no such evidence exists. (see State v. Nightingale, 2012)
What They Can’t Do
- Physical violence. Police may not use physical force to coerce a confession.
- Denial of basic rights. Police must inform all defendants of their rights if they are being arrested and charged with a crime.
- Denial of access to representation. Police or prosecutors may not deny a defendant access to an attorney during questioning.
- Long-term detention without charge. In Georgia, police cannot hold a person for more than 72 hours without filing official charges.
How to Protect Yourself
If you find yourself being interviewed by police, you are required to be truthful and complete in your responses; however, you are never required to make statements that might incriminate you. If you choose to remain silent, do so. Any responses you give to law enforcement may be interpreted as waiving that right.
You also have the right to have an attorney present during questioning. Be aware that interrogators may attempt to secure a confession or admission of guilt by providing misleading or inaccurate information. An attorney can advise you whether and how to respond to police questioning to best support your defense.
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