You Have the Right to Remain Silent…

I’ve spent a long time teaching Criminal Justice at a college level. Inevitably, I will get questions regarding “myths” that I would like to dispel… here’s one of them.

Police can still question you after you invoke your Miranda rights… if you haven’t been clear, that is.

I would take this time to say that I’m not an attorney, and that any and all legal advice you take should come from a practicing, bar-certified attorney in your state of residence… but cases have sprung forward stemming from precisely what constitutes an invocation of the Miranda rights, which are rooted in both the Fifth and Sixth Amendments. That said, take the following for academic purposes only.

“I think I need a lawyer…” and “Maybe I should talk to someone…” do not constitute sufficient invocation of the Miranda rights for police to immediately cease questioning. Or really, police can proceed to ask you if you’re “sure about that”, or explain to you that “that’s your right, if it’s what you want”. Another tried-and-true favorite is “this is the only chance you’re gonna have to explain your side of the story… after your lawyer’s involved, we can’t help you.”

All of these are tactics designed to make you second-guess your decision to consult with an attorney.

“If I’m not guilty, why do I need a lawyer? Won’t it just make me look guilty?”

Dismantle that system of thought. It’s one often employed by people who are certain they’ll “clear everything up” in an interview room, only to find themselves arrested and charged with a crime.

You want a lawyer for three reason: the first is that police are not perfect. A simple Google search can yield thousands of instances where the justice system has arrested, tried, and convicted men and women later proven (through forensic means such as DNA, fingerprints, ballistics, accounting, et cetera) to have not committed the crimes of which they were accused. The second reason is that regardless of your perception by others as “innocent” or “guilty”, a lawyer offers protection. Regardless of your factual guilt or innocence, an attorney can help you to avoid making mistakes that can see you indicted for a crime. An attorney will see to it that all of the due process rights of anyone accused of a crime are followed. The third reason is that the presence of an attorney can force police to rethink their approach. Many cases proceed based upon an intimidation factor. Police and prosecutors thrive on the image cast on someone suspected of a crime, and their tendency to want to preserve their image.

The safest way to think is: stay out of prison first, worry about public image second. Ignore the non-confrontational approach of police, and your subsequent desire to “help them help you”. Even if you’re cleaner than mom’s recently scrubbed kitchen, you need protection.

Remember that they’re not there to help you to begin with. They are there to solidify their case, and that will mean following through with extracting a confession.

Your best bet, if you find yourself across the table from a detective, is to say nothing. You can mention that you want a lawyer, of course… and repeat it. Police are supposed to stop questioning you if you invoke your right to an attorney… but this doesn’t mean they will. Ask for an attorney, and say nothing else regarding the case until you get one. Be extremely clear about your request, and say nothing until you sign a retainer.

I should also mention this: expect to be placed under arrest. If there is enough of a suspicion to bring a person into an interview room, the goal of the police is to obtain enough probable cause to affect an arrest. Your confession can give that to them! In a situation where they already have probable cause, your confession (though it will be sugar-coated as “just answering some questions” or “clearing up a few details”) will strengthen their case.

Most people speak, and by extension, incriminate themselves in the hopes (or really, under the assumption) that they’re just going to “answer a few questions” or “clear up a few details”… especially those without prior experience with police. The laymen often believes that he or she will be able to “explain” his or her way out of a situation… especially if it appears that their involvement is considered criminal.

Be exceptionally direct in your desire for an attorney. Better to pose it as a demand rather than a simple request or favor. If it isn’t read on paper as an immediate invocation of rights (in other words, if it seems wishy-washy, like you maybe would like or think you should have an attorney), police can exploit this, and continue to attempt to extract a confession. Demand a lawyer, and repeat this demand.

Operate under the assumption that if they have you in the room, they have enough to place you under arrest. The best way you can help yourself is to say nothing other than “I’d like a lawyer, and do not wish to discuss anything else.” Rinse and repeat.

Again, I’ll restate that I am not an attorney, and am not being paid to promote, advertise, or suggest one. What I am here to do is to educate a few about a topic often misunderstood.

Thanks for your attention, and remember: anything you say can and will be used against you.