By: David E. Saperstein

Email: dsaperstein@hurleyburish.com

Phone: 608-257-0945

We are taught as children, and presumably we still teach our children, that telling the truth is a virtue; that there is nothing more important than the truth. One could argue that truth is elemental to a cohesive societal order.

It is also a foundational, elemental principle of the American criminal justice system that we are all presumed innocent, even when (and especially when) we are accused of wrongdoing.[i]

However, these two elemental principles – truth as a virtue and presumption of innocence – are at odds with each other when a person is being questioned by a police officer.  That is because a police officer is an agent of the State; and the State has the immense power to initiate criminal or quasi-criminal prosecution, sometimes based solely on something a person may have said that attracts suspicion, or confirms the officer’s already existing suspicion.  Whether the officer informs us of this or not, anything we say to the officer may be used against us to assist the State in its aim to prosecute.[ii] 

In other words, there is no presumption of innocence in the interrogation room, or on the side of the road after a traffic stop, or in our doorway or living room when an officer is there to chat with us.  In the interrogation room, or out on the road after a traffic stop, even a statement that seems to be, effectively, an assertion of innocence can be, by itself, a basis for a criminal charge.  Presumption of innocence exists only in the courtroom, and only after a formal accusation has already been brought.

It is standard operating procedure for an accused person to enter a plea of “not guilty” at the early stage of a criminal prosecution, even if the accused person is ultimately found guilty of something, even if the accused person believes himself to be guilty of something. Among the practical reasons for this procedural assertion of innocence is that the State’s evidence is not provided to the accused person or his attorney until after a not guilty plea is entered in court.  Even in cases that are resolved through plea negotiations, the defense attorney cannot engage in those negotiations until she has thoroughly reviewed all of the evidence, and conducted her own investigation.  The accused person’s “not guilty” plea is, therefore, an accepted, expected and legal assertion of his presumed innocence. It is a legally acceptable form of saying “I didn’t do it.”

By contrast, affirmatively stating to an officer “No, I didn’t do X” or “It wasn’t me who did X” is not a legal form of asserting the presumption of innocence. If the officer (remember, agent of the State) doesn’t believe you, she will pass along her suspicion that you lied (in the form of a report), and the prosecutor may well issue the criminal charge of obstructing an officer.

Obstructing an officer is defined as “knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process.”[iii]  This article is focused on the first clause in that definition – “knowingly giving false information to the officer” – because these seven words are dangerously unforgiving. They do not accommodate what may seem to be an assertion of the presumption of innocence during a conversation with a police officer. 

To be criminally charged for knowingly giving false information to an officer, the State does not have to prove, or even allege, that the false information actually misled the officer. All that is required to charge this crime is to allege that the officer asked a question and that the accused person’s answer was not true. It may be obvious to the officer, based on other facts and circumstances present when she asks the question, that she did not believe the answer to be true, and did not act on the false information. In other words, the untrue answer doesn’t literally have to “obstruct” the officer’s investigation for that answer to be charged as a crime.

To use legal terminology, there is no “exculpatory no” exception in the definition of obstructing an officer.[iv] An example of a seemingly innocuous “exculpatory no” is illustrated by the following example. A driver is pulled over by a police officer for having a defective taillight. During the officer’s initial conversation with the driver, the officer believes she smells the odor of alcohol on the driver’s breath. The officer doesn’t tell the driver that she smells the odor of alcohol, but instead asks the driver “Have you consumed any alcohol tonight?” The driver replies, “No.”  The officer then continues to ask questions — “Where are you coming from?” “Where are you going?” — and a couple of minutes later asks, “Are you sure you haven’t consumed any alcohol, because I smell it on your breath ?”  The driver then admits to having consumed alcohol. 

This driver may not have thought anything of blurting out “No” to the officer’s first question about consuming alcohol. It may have seemed like a reflex; like a child suspected by his mother of stealing cookies from the cookie jar. The driver, on the other hand, may have thought that the presumption of innocence would protect him in this circumstance.  He may have thought that answering “No” to such a question — a question that seems very much like “Are you guilty of something?” — was equivalent to saying “not guilty” in a courtroom. That driver would be wrong. In the hands of an unforgiving prosecutor, that driver may be charged with a crime.

As ordinary citizens, we are lied to everyday. Many of our elected representatives and officials make provably false statements to us, as easily and commonly as drawing breath. We look to our leaders to lead by example, but if we took that expectation seriously we would have to conclude that lying is just part of life. However, if you are an average citizen being questioned by a police officer, that conclusion would be a dangerous delusion.  Even seemingly insignificant lies, lies that nobody believes or relies upon, lies that don’t affect world events or even the actions of a single police officer — those are potential criminally chargeable acts for you and me.

So how do we reconcile this idea that (1) we are entitled to assert our innocence and defend ourselves against the prosecutorial power of the State and its agents, but (2) we cannot affirmatively tell an officer she is wrong about her apparent suspicions ?  First, remember that the presumption of innocence is still a valid right that you would assert in a courtroom, and your conversation with the officer may end up there.  So go ahead and say it when the officer asks you a question.  Second, always remember that anything you say can and will be used against you, and you still have the right to not say anything at all.  So, when an officer asks you a question that has even the whiff of suspicion behind it, answer with, “I am presumed innocent and I am asserting my right not to answer any of your questions.”[v]

[i] See Coffin v. United States, 156 U.S. 432 (1895)

[ii] See Miranda v. Arizona, 384 U.S. 436 (1966)

[iii] Wis. Stats. § 946.41 (2)(a)

[iv] See Brogan v. United States, 522 U.S. 398 (1998); State v. Reed, 280 Wis.2d 68 (2005)

[v] While you’re at it, you should ask, “Am I being detained, or am I free to leave?”