Answering some police questions and remaining silent on others

The choice to answer remains a conscious choice

Article 29 of the Code of Criminal Procedure contains the basis for the right to remain silent and the freedom to make a statement. A suspect does not have to substantively cooperate with his own accusation by answering every question. That position does not disappear simply because an earlier question has been answered. At the same time, every concrete interrogation situation requires attention to the applicable rights, any other obligations and one's own legal position. For example, the right to remain silent regarding content is not a general permission to provide a false identity.

Preparation is therefore not just about one standard sentence. Make sure it is clear why you are being heard, whether you have been classified as a suspect and how legal assistance is arranged. An unclear invitation or change of position deserves attention before substantive answers. Ask the lawyer what information is already known and what still needs to be investigated. The choice not to explain at a certain point may be different from the choice to provide a verifiable explanation later. Make that decision on the file, not on stories about what every innocent person should supposedly do.

Not knowing is different from not answering

I don't know says something about knowledge or memory. I don't want to answer that, it makes a choice about explaining known. I don't understand the question asking for clarification. Those statements are not interchangeable. Anyone who says they know nothing out of tension while actually wanting to exercise their right to remain silent may later be confronted with an alleged change in their memory. So do not try to use substantive denial as a substitute for invoking the right to remain silent. Refer to real uncertainty as uncertainty and ask for explanation if there is any misunderstanding.

That distinction also applies to time and place. An exact date may be unknown while the event is remembered. An estimate should not be recorded as certainty. If you have a question with multiple assumptions, first discuss which of them you recognize. Answering the last part can otherwise be read as agreeing with everything that was said before. A careful interrogation requires room to clarify, but a suspect must also let himself know when the summary is not consistent. Don't give confirmation just to make the tension of the conversation pass more quickly.

Fictional fragment one: a practical question and a substantive accusation

This conversation is fictitious: the interrogator asks whether the suspect has received the invitation; the suspect confirms this. The question then follows why he was with the victim on the evening in question. The suspect says: 'I do not want to answer that substantive question now. I want to talk to my lawyer first.' The first confirmation is not a confession about that night. The next question also contains an assumption about presence. For correct recording, it must be clear which practical information has been confirmed and which has not been followed by a substantive explanation.

The meaning of this fragment lies in its definition. The suspect does not say that he does not remember anything and does not provide an alternative event. He makes a choice of process known. In the real conversation, it must be legally assessed how consultation and continuation take place. A self-chosen sentence does not guarantee pause or planning, but its content should not be rewritten as a denial or memory problem. Therefore, afterwards read not only the answer, but also the question that preceded it and the transition between practical and substantive topics.

Fictional fragment two: a question is summarized too broadly

A second fictitious conversation: the interrogator asks whether the suspect knows the owner of a car. The suspect answers that they used to be colleagues. The interrogator then asks whether he knows where the car was during the incident. The suspect says: 'Those are different things. I can say something about the previous collaboration; I won't answer that last question now.' Familiarity with a person does not automatically prove knowledge about that person's car at a later time. The substantive leap must remain recognizable in the recording.

Selective answers here can prevent a broad summary from merging two facts. At the same time, the risk is that an answer presented in isolation appears incomplete. Therefore, request that the relevant explanation be included. A lawyer can monitor whether questions and answers are sufficiently separated and whether further consultation is necessary. The fragment does not prescribe an optimal strategy for every suspect. In a specific case it may be wiser not to explain the content at all for the time being. The choice requires knowledge of the file and an understandable assessment of the possible consequences.

Fictional fragment three: don't confuse uncertainty with silence

In a third fictitious conversation, the interrogator asks what time a message was received. The suspect answers: 'I don't remember an exact time; I don't want to gamble on that.' To the next question about the content of a later telephone conversation, he says: 'I now invoke my right to remain silent.' These are two different messages. The first describes limited memory; the second leaves a substantive topic unanswered. The two should not be combined to the general conclusion that the suspect no longer knows anything about everything.

The practical point is that precision is important even for short answers. A time that is read out by the interrogator does not need to be confirmed as your own memory if you only know it from that piece. You can indicate what knowledge is based on, without resolving uncertainties with an invented interpretation. Discuss with the lawyer what can be checked from the file. The goal is not to add as many caveats as possible, but to prevent an uncertain memory from turning into a firm statement that you did not want to make due to the form of the conversation.

Silence is not independent evidence, context remains relevant

In ECLI:NL:HR:2019:97, the Supreme Court discusses the distinction between silence in itself and the appreciation of existing evidence. A refusal to explain or answer a particular question cannot in itself contribute to the evidence. The judge may, under certain conditions, take into account that no plausible disconfirming explanation has been given for a circumstance that already provides grounds. The judgment concerned a specific fencing case and did not give license to supplement a lack of evidence with the suspect's mere silence.

For practical considerations, this means that two absolute promises are incorrect. Silence does not prove that someone is guilty, but it also does not guarantee that the judge will disregard all existing evidence. A partial statement can also be placed next to other documents. Therefore, let us discuss what the file already contains and what factual explanation can be substantiated with existing data. That conversation is different from an assignment to come up with an explanation as soon as a clue seems difficult. The burden of proof does not change into a general obligation to refute every accusation yourself.

A lawyer helps you understand the conversation and the choice

The police describe the task of the suspect's lawyer. Assistance serves, among other things, to explain rights, enable consultation and ensure that the interrogation is conducted carefully. Discuss in advance how to indicate that you do not understand something or want consultation. In case of tension, limited language skills or other support needs, a standard explanation may be insufficient. Ask for appropriate support in a timely manner. A polite confirmation that everything is clear means little if the suspect does not really understand the gist of the accusation or his choice.

A lawyer can help distinguish between personal knowledge, conclusions and missing information. Provide existing documents without coordinating the statements of others. Also discuss fatigue or medication if they affect understanding or recall. That is no reason to automatically call a particular statement unreliable, but relevant circumstances must be made recognizable at the right time and, if necessary, dealt with appropriately.

Check the meaning of what is written as an answer

An official report may contain a summary of the conversation. Check whether it states what you said and whether the difference between ignorance, misunderstanding and invoking the right to remain silent has been maintained. Also read the connecting words. Because, so and then may suggest a connection that you did not make. Ask for clarification or correction if the text is incorrect. This is not an invitation to remove previously unfavorable facts, but a way to have the actual statement and process choices accurately recorded.

Anyone who later discovers an error must specifically submit it to the lawyer with the relevant passage, remembered question and available support. A general statement that the entire interrogation is wrong makes targeted investigation more difficult. If a recording exists, the appropriate access or investigation route can be discussed. Do not assume unlimited access to every file without any procedure. The power of a correction request lies in pointing out exactly which difference has meaning, for example that an explicit appeal to the right to remain silent is summarized as not remembering and therefore gives a different impression.

Seven points of attention for an understandable interrogation

Make a short card in advance for the consultation with the lawyer. Do not write a rehearsed alternative story, but practical points of attention about understanding, data and the way in which uncertainties are identified. The situation can change during an interrogation. A card is therefore not a mandatory schedule that must be followed without consultation. It mainly helps the suspect and lawyer to recognize when a new substantive question, an incorrect assumption or an unclear formulation requires further attention, before an automatic answer is given.

• Position: why are you being heard and are charges and rights explained in an understandable way?
• Assistance: how are prior consultations, interrogation assistance and possible support arranged?
• Knowledge: what do you know, what is only in one piece and what remains unknown?
• Question: does it contain several parts, an assumption or words that you do not understand?
• Choice: answer, request for clarification and appeal to the right to remain silent must be recognisably different.
• Record: Check relevant question, complete answer, uncertainty and explanation given.
• Follow-up: discuss new information or a found error specifically and in a timely manner with the lawyer.

Precision protects better than a general rule about talking

Our conclusion is that selective responses require careful decision-making. Speaking earlier does not end the right to remain silent; the given content can be assessed in context. A general instruction to always explain everything therefore does not provide sufficient guidance. The preparation requires understanding of the suspicion, appropriate assistance and reliable recording, so that a real choice and a limited memory are not confused.

Read the general explanation about the police interrogation and discuss a specific passage from an incorrect official report with the lawyer. Use the fictional excerpts as examples of different types of answers, not as predictions of a real interrogation. The best choice depends on the file and personal situation. What remains useful is making an honest distinction between what you know, what you do not understand and what you do not want to provide a substantive explanation at that moment.