If you are reading this page, perhaps a federal agent has tried to contact you by phone or in person.
Perhaps an FBI agent left a business card at your door or with a family member, asking for a call back.
Why would the FBI come to your house?
There are a number of possible reasons. They range from the possibility that they are looking for someone who does not live there anymore, to looking for information about another person, to looking to get interview a target or even make an arrest.
Perhaps you were at home, and the FBI agent has told you some things about your connection to the investigation and you are wondering if you can take the agent’s statements at face value.
Or, perhaps you have already agreed to speak with federal agents, and you are wondering if you have made a grievous error.
These are common scenarios. Here are some other common questions people ask:
Why does the FBI want to talk to me?
Should I talk to law enforcement?
Can I refuse to talk to the FBI?
If you are wondering about any of the above, hopefully this page can help. We have touched on some of these issues before in our article on federal investigations, but will go into it in more detail here.
Hire a Lawyer First
It is almost never to your advantage to speak to government agents without an attorney. While we would not rule out the possibility that there might be situations–perhaps one out of a thousand–where you are losing some advantage by not talking to agents then and there, you are not in a position to objectively make that decision.
If you had time to search for this page on the internet, this narrow exception probably does not apply to you. You should therefore consult an attorney before you even consider speaking to law enforcement.
As you probably know, anything you say to the agents can be used against you. Moreover, most federal agents do not record their interviews but merely take notes which are later converted to a report setting fort the government’s version of what you said. If you dispute their version, it will be your word against the government’s. And, because federal agents often work in pairs, there will probably be two witnesses to contradict you.
Also, federal criminal law can be very complicated, so you may make damaging admission even if you think you are merely protesting your innocence.
Finally, if the agents conclude (rightly or wrongly) that your statements are not true, you may expose yourself to a charge of False Statements (more on this later).
The overwhelming chances are that if there is something to be gained by talking to federal agents, you will have that opportunity with the benefit of having a lawyer advise you and guide you through the process.
When federal agents try to convince you to talk
Outside of the extremely rare circumstances discussed above, you should not rely on statements from federal agents to the effect that is in your interest to talk to them immediately without seeking representation.
You are likely scared, and worried about what this is all about and what this means. You are likely surprised. Agents are trained to take advantage of all of this, and to get you to make statements that can later be used against you.
We have represented many clients who initially refused to speak with law enforcement. Some of these clients later agreed to talk after receiving our advice. In 100% of those cases, the government agents were happy to talk to them. Not a single one “missed their chance.”
To be sure, federal agents are prohibited from promising you benefits in exchange for speaking with them. However, they are very skilled at implying you will receive such benefits in a thousand different ways. Federal agents receive extensive training on how to convince people to talk without their lawyers and they can be very intimidating and/or persuasive. We have represented many clients who came away from interviews thinking they had been promised a particular outcome and were later displeased to learn this was not the case.
The bottom line is that the agents’ only goal is to secure the evidence they need for their investigation. They are not there to protect your rights and interests.
If you have already spoken to agents
As stated above, federal agents are highly trained at getting people to talk. If you agreed to speak to agents on their first approach without the opportunity to seek legal advice, you are in good company.
What are the consequences of your decision to talk? It depends on the facts of the case and what you said. If you made a full confession to a serious crime, that is obviously going to limit your options going forward. However, there is still a lot you and your lawyer can do to mitigate the consequences.
On the other hand, it is possible that you have not seriously harmed your case. Perhaps you offered an innocent explanation for your conduct that the agents have at least provisionally accepted. Such things do happen, especially in the early stages of an investigation.
In either case, you should discuss the statements you made with an attorney. Your attorney will help you understand their likely consequences for your role in the investigation and if it makes sense to keep talking.
If you have lied to federal agents
Let’s say you have already spoken to federal agents and did not tell the whole truth. Maybe you left some things out or fudged a few details. Or, maybe you spun a tale that was (in technical legal jargon) “total BS.”
The bad news is that you have probably broken the law by doing so. To be sure, you are not required to speak to law enforcement. But, if you do so, you must tell the truth. Lying to federal agents could result in false statements charges. Many a famous case involved a defendant who was never proven guilty of an underlying criminal offense but nonetheless went down for lying to investigators or to the grand jury (Alger Hiss, Barry Bonds, Michael Flynn, Martha Stewart, etc.).
The good news is that many otherwise honest people have made your same mistake and did not get prosecuted. The federal agents know they did everything possible to throw you off your game and it is only human nature to try and protect oneself in such a stressful situation.
If you later decide to cooperate with the government, you will have an opportunity to correct your misstatements. In our experience, a substantial percentage of cooperating witnesses, perhaps even a majority, have lied about their behavior at some point.
Be sure you inform your lawyer about any untrue statements you made to law enforcement. Your lawyer can help you evaluate the likelihood or lack thereof that the government will seek to charge you with false statements.
Potential benefits of speaking with the agents
The potential benefit of speaking with law enforcement depends on the particular facts of the case. Having said that, providing truthful and useful information to federal agents can often have tremendous rewards. The government may agree not to charge you at all or offer you a favorable plea bargain. In extreme cases, cooperation with the government can save literally decades of prison time if the offense in question is a serious one. But, as we already discussed above, this should be done with the benefit of counsel. You will rarely know when caught off guard by an FBI agent or other law enforcement agent what their end game is.
How we decide whether our clients should speak with federal agents
Every case is different, but all cases when agents want to question a client involve certain common elements. In every such case we will: 1) conduct a thorough interview with the client 2) contact the agent and/or supervising prosecutor to obtain whatever information they are willing to share, 3) perform any other necessary investigation and document review and 4) thoroughly research the criminal laws involved.
If it is reasonably certain after taking these steps that you are simply a witness and not a potential target for prosecution, it may be safe to tell the agents what you know. If you do not wish to cooperate, there is no requirement that you do so (although you are still subject to being subpoenaed).
If it appears you do have some exposure to criminal prosecution, we may recommend you speak with the agents if 1) you are prepared to tell the truth, 2) we are reasonably certain the agents and/or prosecutors will accept what you claim to be the truth and 3) we are reasonably certain the outcome of your case will be more favorable if you cooperate than if you don’t.
If any of these is not the case, we will probably recommend you not speak with the agents. For example, perhaps you have useful information that the government is ready to believe but also a strong defense at trial. It may not be in your interest to speak to the agents because you have a shot at a not guilty verdict. Or, let’s say your potential defenses are not as strong but there is good reason to believe the case agents will never believe your side of the story. Speaking to the government under those circumstances will probably put you in a worse position than if you had not done so.
The decision to speak or not speak with agents should be guided by the careful consideration and experience of your attorney. That decision should always be carefully tailored to the specific situation at hand.
We can provide a quick example here:
In one case, the government stated that if our client did not speak with the government, they would definitely charge the client. But if he spoke with the government, they may or may not charge him. In in that situation, having looked at the evidence, we were confident that the jury would not convict our client. At the same time, we did not want him to go through the traumatic (and financially difficult) process of fighting a federal criminal case at trial. We agreed to let our client speak to the government, but also made a strong presentation showing why he would be acquitted if charged. Our client in that case never set foot in a courtroom.
Of course, the situation could have turned out quite differently. We had to rely on our experience and understanding of how the case would play out at trial, and how twelve members of the community–the jury–would perceive it. Once the prosecutors saw it from our side, they agreed.
The truth is that there is not an easy answer to the title question of this post – sometimes it will be in your interest to speak with federal agents and sometimes it will not. If you would like our help to decide which course if action is right for you, please schedule a consultation.