Everyone has heard this piece of common wisdom: never talk to law enforcement without a lawyer. Yet many intelligent people do so anyway.
Most people know they aren’t criminals. So they think, “Why shouldn’t I give an interview? I’ve done nothing wrong.”
The problem with this thinking is that it assumes that the criminal law punishes only knowing violations of the law.
While that should be true, in the mid-1980’s the Federal government began a trend of using the criminal law to regulate behavior, and often doing so without requiring that the person have a “guilty mind” before being labeled a felon, fined and imprisoned.
It is this second part of the trend that causes the most problems for ordinary citizens.
The mental element in a crime is known as “mens rea,” which can be defined as the intention or knowledge of wrongdoing. For example, the accidental killing of a person is not murder, because murder requires the homicide to be intentional. That intentionality requirement is the “mens rea,” and it is an important safeguard to prevent innocent people from being convicted of crimes and sent to prison.
However, a WSJ article from late 2011 reported that “more than 40% of nonviolent [criminal] offenses created or amended during two recent Congresses . . . had ‘weak’ mens rea requirements, at best[.]” More recently the Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) published a joint paper outlining the potential for “pervasive injustice” that results from the practice of discarding “the justification for criminal punishment that has for centuries been based on an individual’s intent to commit a wrongful act.” (“Without Intent” paper).
One effect is an explosion in our prison population, as one in every 100 adults in America is behind bars, and one in 31 adults is under “correctional” supervision. (The Economist).
The important impact of this development for the average person, however, is that it obliterates the concept that a person has nothing to fear from the Feds if they know they’ve done nothing wrong.
Today, you can be perfectly innocent in your own mind and still be a criminal in the eyes of the federal government.
So, if a federal agent shows up at your door, be polite, but be smart–decline the offer to speak then and there. Get their card and tell them you will be in touch about scheduling an interview. Then call a federal criminal defense attorney.
While your lawyer may decide that being interviewed is the appropriate option, it is not a decision you should make on your own.