Over the last week or so it occurred to me that I've missed something by concentrating on advising people to not talk to the police in a variety of circumstances. Yes, that's important advice. Yes, you should be aware of confirmation bias. Yes, you should ask if you're being detained.
Here's what I missed that's equally - if not more - important: Do. Not. Talk. To. Anyone. By talk I'm including every form of social media, texts, podcasts, smoke signals, and signal flags.
It's 2022 going on 2023, that means everyone in the United States over 30 grew up with Law & Order (etc.); the rest of us could hardly miss it. A significant percentage of our population is pretty sure they know the rules of evidence - especially hearsay.
They do not.
That's okay, a lot of lawyers who don't do much - if any - trial work don't know them very well either.
So, here's the deal: if you've been arrested or even suspect you may be the subject of a criminal investigation keep it between you and your lawyer. Don't comment on social media about 'unfairness,' for God's sake don't 'explain a few things' or 'set the record straight.'
Don't be Sam Bankman-Fried. The founder of FTX has been hard to miss in news these last few weeks after the collapse of the company and subsequent domino effect through venture capital and cryptocurrency firms. Well-founded rumors have him as the subject of multiple criminal and SEC investigations. Serious stuff. Maybe Bernie Madoff level stuff.
He has a team of lawyers. We know this because he has started a lot of sentences with "My attorneys don't want me talking, but . . ." Those sentences have been . . . everywhere. Since the FTX disaster, "Bankman-Fried has granted interviews to seemingly anyone who asks: the New York Times, The Wall Street Journal, and New York Magazine."
Bankman-Fried is hanging himself, he is leaving his legal team - if they haven't all resigned by now - with little to no room to work.
You don't need to be interviewed by one of the foremost corporate fraud reporters in the country to make the same mistake Bankman-Fried is. Only discuss your matter with your attorney. Don't email or text anyone when there's not a full confidential/privileged notice on the bottom.
Needless to say, social media, even in closed groups, even on Snap Chat (screenshots are a thing), could easily become evidence.
By the way, the hearsay thing - "statements against interest" are an exception to the hearsay rule. Say or write something indicating you're probably guilty, even in jest, is admissible.
Keep everything between you and your lawyer. No third parties involved, or in SBF's case no three million parties.
UPDATE: Just as we finished writing this Bankman-Fried was arrested in the Bahamas to be held for the U.S. where he has been indicted. This is just over a month after FTX failed. Quick work for the DOJ . . . undoubtedly helped more than a little by his media appearances.