About That Miranda Supreme Court Ruling

I’m confused about it, basically.

The ruling says that suspects must announce that they choose to remain silent in order to halt an interrogation. Which on one hand is irony of a particularly rich and creamy sort, but on the other hand does make some amount of practical sense. In the case that precipitated the ruling, the suspect said he understood his rights and claimed to remain silent while the cops interrogated him, but in fact several times answered or responded to questions posed to him by cops. Why did the cops keep interrogating him after he kept silent? Because that’s their gig — to get people to talk. Which the guy did; he had the right to remain silent, but didn’t, after he said he understood his rights.

The crux of the issue seems to be that the police dropped him into an interrogation room after the fellow had decided to remain silent, but since he did not communicate that intent to the cops, they went ahead with the interrogation anyway. I’m sure their line of reasoning is that they did not explicitly know he chose not to speak to them, just that he was being standard-issue uncommunicative and they were trying to pry out information.

Thus, again, the irony of having to say to the cops you choose not to speak to the cops in order not to have to speak to the cops. Intellectually I’m not a fan of this ruling — the rights a suspect has should be inherent without needing to be invoked (and that includes the right to representation, which as I understand must currently be invoked as well) — but as a practical matter, how do the police know you don’t intend to speak to them at all if you don’t tell them?

As I said: Confusing.

I don’t know that in the long run this is any big break for police, since I do foresee lawsuits in which the defendant accuses the police of not fully informing him/her on how to appropriately invoke his/her right to silence, and a 5-4 ruling, as in this case, suggests a future, ever-so-slightly less conservative Supreme Court might lean more toward the way of the suspect’s rights and require the police to inform the suspect he/she has to say “I don’t want to talk to you,” in order to avoid interrogation. In the meantime, personally speaking, I’m going to memorize the following sentence, should I ever get arrested for anything: “I want my lawyer, and I invoke my right to remain silent.” Spoken in that order, since it’s the most logical way to do it.

I’d be delighted to hear from people who know more about this than I do. This is my layman’s take, based on what I’ve read in the news. I may have squidged some pertinent details thereby.

98 thoughts on “About That Miranda Supreme Court Ruling

  1. I was thinking along the same lines. To my mind, invoking the right to remain silent involves remaining silent. As soon as you speak, even if you were silent for 2 hours, you have chosen to speak (assuming no coercive tactics were used, which is a whole different ball of wax).

    I’m not sure if the police are obligated to stop interrogation, even if you do invoke said rights, and as you noted I am sure there will be some interesting case law made when someone explicitly invokes the right then chooses to speak later. Would that statement be admissible? What if its a different interrogation session, does the previous invocation apply?

    I do believe under the law, if not the principle, that the court made the right decision. The wording of the current warning is “You have the right to remain silent, and anything you say may be used against you in a court of law.” At that point, you have been firmly advised of the consequences of speaking, anything you say is your problem.

  2. “I want my lawyer, and I invoke my right to remain silent.”

    My sister, a former Brooklyn ADA, suggested that very thing to me many years ago. Fortunately, I’ve never been arrested, so never had to use it.

    She also advised that you say this even if you’re being arrested for something you didn’t do, know nothing about, and besides you were out of the country at the time. Because otherwise in your attempts to demonstrate that you have no idea what they’re talking about, you might say something stupid and find yourself in a My Cousin Vinny situation.

  3. As a law-talkin’ guy, albeit one who hasn’t done criminal law in a while, I think that part of the problem with the ruling is the underlying facts- they say bad facts make for bad law. The defendant in this case seems to have started to talk, and that’s where it went bad for him. The best advice is to clearly and unambiguously assert your right to remain silent- the police shouldn’t continue to ask questions once the right has been asserted.

    Then again, I’m in favor of overturning Terry v. Ohio as bad law, so what do I know.

  4. I am not a lawyer (yet; rising 3L), nothing I say should be taken or relied upon for legal advice, blah, blah…

    I’m also not a crim pro specialist (though classmates of mine, who are, were spitting nails when this came down), but I did take the class.

    As soon as you say “I want a lawyer,” they absolutely have to get you one and can’t ask you anything (at least, if they want to obey the law). The right to counsel is substantially stronger than the right to remain silent. If ever you’re arrested, say “I want a lawyer” at every opportunity and don’t say another damn thing.

    Personally, I’d like to see the Miranda warning changed to include mention that the right to remain silent (and for that matter, to counsel) must be explicitly invoked. But, of course, the Miranda warnings are not mandated in form, and so the cops design them to give themselves as much leeway as they can get away with (as happened here; and believe me, the cops have done worse)…

  5. Seems to need two stages:

    1. I want my lawyer and I invoke my right to remain silent.

    2. If the cops attempt to get you to change your mind before your lawyer arrives, you go into what I was taught as “fog and broken record.”

    LOOP

    Cop: (anything)

    You: I have invoked my right to remain silent.

    END LOOP

    Wash, rinse, repeat for whatever time is necessary, even if they ask you if you want something to drink. Saying anything else risks involving you in “casual” conversation.

  6. Correction. I shouldn’t have said “absolutely”–even the right to counsel has exceptions (if you ask for counsel, but before it arrives, you change your mind, completely on your own, that undoes the invocation of the right). But, practically speaking, once you ask for a lawyer, interrogation ceases.

  7. I can see how the ruling invites jokes, but it makes sense. When you invoke your right to legal counsel, the police have to stop questioning you. But it’s a right you must invoke.

    Also, where is the downside to requiring someone who has been instructed on her rights, understands them, and wishes to stop being questioned by the police to say, “I invoke my right to remain silent”? If you could “invoke” your right to remain silent by remaining silent, how long must you remain silent for the police to get the message? 2 minutes? 5? 20?

    Isn’t a “bright line” test in everyone’s best interests? Take as much confusion out of the issue as possible by requiring an affirmative invocation, and everybody knows where they stand.

  8. I’ve been on the investigator side of interview/interrogation and it’s a very fine line to walk. The magic words, more than “I’m invoking my right to remain silent” are, “I want to speak to an attorney”. That would always end an interview right there. Of course a lot of bad guys think they can sell us a crap story and/or outsmart us, and can’t wait to give up their right to remain silent. We have always been pretty conservative and prefer to err on the safe side–if someone was remaining silent but not saying that he didn’t want to talk to us, we might try talking to them for a while, seeing if we could provoke them answering us, and that’s totally legit. But we wouldn’t do it for 2 hours. Even if someone says he wants to remain silent but opts not to leave (if not under arrest) or ask to be taken back to the jail, I would interpret that as a sign that s/he is still wavering about speaking, and would try the one-sided conversation for a bit. The only thing that will unequivocally stop questioning is to ask for an attorney, and do so directly. If you do something like “maybe I need an attorney” or “do you guys think I need an attorney?” I would ask if they are invoking their right to an attorney and the interview would end at that time, and ask if that’s what they want to do. If they say yes, then it’s over. but you’d be surprised how many will waffle, and back off, and keep talking. Especially if, as is the case in most departments, the interview is over until some other day after a court appointed attorney is procured. If the attorney isn’t going to be provided right that moment, a lot of people will opt to keep talking. And they will often invoke their right and then try to talk to us some more while we are taking them back to the jail and we have to stop them and say, you invoked your right to remain silent/have an attorney, so we can’t have this conversation now, unless you want to go back into the interview room and say that you want to keep going. Some will do so at that point…and some will go back tothe jail, sit and stew about it for a while, and then ask to be taken back to speak to a detective and waive their right after invoking it. Without so many bad guys thinking we are dumb and they are smart, we wouldn’t be able to solve nearly as many cases….

  9. My understanding from reading up on the subject this morning (I am not a lawyer, nor even particularly bright) is that stating “I am choosing to remain silent” (or better, “Gimme my lawyer”) turns off the questions tap: that any further interrogation is not permitted until the suspect says “I’m waiving my right to silence”, and therefore any answers not admissible.

    In the absence of that, well, dude, the other part of the warning is “anything you say can and will be used against you”. Did he think they were kidding?

  10. Robert @ 8:

    Isn’t a “bright line” test in everyone’s best interests? Take as much confusion out of the issue as possible by requiring an affirmative invocation, and everybody knows where they stand.

    If you want to go that route, then the line should be brightly lit from both sides. Take as much confusion as possible out of the issue by requiring the police to specifically ask whether the subject is waving or invoking their right to remain silent.

  11. “…ever-so-slightly less conservative Supreme Court might lean more toward the way of the suspect’s rights..”

    You mean like Kagan? Sorry she wrote in support of the police on this one. So had this waited till the next SCOTUS session, it would have been 6-3. Unless the Supremes do vote swapping in order to keep aligned with their homies ;)

  12. kind of logical I suppose… you declare your use of 5th amendment rights, and you declare your desire for an attorney (right to counsel) so declaring your right to remain silent kind of makes sense… as long you shut the hell up after doing so

  13. Bearpaw @ #11

    “If you want to go that route, then the line should be brightly lit from both sides. Take as much confusion as possible out of the issue by requiring the police to specifically ask whether the subject is waving or invoking their right to remain silent.”

    That’s pretty much the idea behind the Miranda warnings. The police have to inform you that you have the right to remain silent, and that anything you say can be used against you. They are supposed to make sure you understand that right. The issue is whether you then have to affirmatively invoke that right, or whether your silence is an implied invocation.

    But if you want to add something to the Miranda warning that says the police have to ask you whether you wish to remain silent or are willing to speak, fine. Assuming, of course, that the subject of the interrogation has to actually answer the question, rather than remaining silent…

  14. Oh, yeah-
    Never underestimate the dramatic difference between the ability of a suspect to BS a cop, as perceived in the mind of the suspect, and as actually present in the mind of the cop.

    So very many of my former clients couldn’t help themselves, regardless of Miranda warnings. (or in the face of patient, deliberate instruction by helpful defense counsel after a prior “incident”).

  15. The case behind this ruling had the cops asking a murder suspect if he had prayed for forgiveness for killing the victim. The man said yes and that apparently helped convince the jury he had done it.

    On the one hand, he had been told that anything he said would be used against him in a court of law — pretty clear what that means, so he was a dummy for offering any response.

    On the other hand, shouldn’t we be looking for more substantial evidence than a ‘confession’ obtained from such a trick question? It’s kind of like the scene from My Cousin Vinny where the sheriff reads back the ‘confession’ from Ralph Macchio, where he had said “I shot the clerk?”

    I wish they would have ruled the other way, personally. But I can understand why they ruled the way they did…

  16. So…. it really has to do with, not whether you can remain silent or not, but whether they can keep questioning you. You could theoretically just sit there not saying anything with them questioning you for as long as they want. Hmm.

  17. First of all:

    http://www.aclu.org/national-security/know-your-rights-when-encountering-law-enforcement

    second of all, this is exercising your right to remain silent:

    Cop: Where’d you hide the body, Frankie?
    Frankie: (silent)

    This is not:

    Cop: Where’d you hide the body, Frankie?
    Frankie: I just shot the guy, Louie dumped it.

    I believe others have said that if you say “I want a lawyer”, the interrogation stops then and there until you get a lawyer. But if you say “I want a lawyer”, and then the two cops start talking amongst themselves and you say “I just shot the guy, Louie buried him” to correct them, that’s going to end up being used against you in a court of law.

    It’s also going to get Louie in an interrogation room and then they’re going to start doing everything in their power to put the “prisoner’s dilemma” between you and Louie, and squeeze bits and pieces out of the both of you, to use and play against the other.

    “Louie told us where you hid the gun”

    “Yeah? Well, I’ll show you where he dug the grave”

    Then teh go to Louie.

    “Frankie told us where you buried the body”

    and Louie says “Yeah? Well I’ll show you where he hid the gun”

    oops.

    I think all this decision really does is say that when the guy says “I remain silent”, then the cops are supposed to treat it like “I want a lawyer” and stop the interrogation. That doesn’t mean that they don’t have a whole laundry list of tricks to try and get you to “correct” them as they talk “amongst themselves”.

    “I want a lawyer” and then shut the hell up. You are in way over your head at this point.

  18. Sotomayor’s dissenting opinion didn’t make a whole lot of sense, at least from my laymen’s perspective. Maybe I’m incorrect, but it sounds like she thinks that the moment the suspect is given their Miranda warnings and asked if they understand them and they state they do, but then don’t say anything else, the police are to assume that the suspect has invoked his/her right and the interrogation is over even before it can get started? I agree that there needs to be a bright line between badgering a suspect and interrogating a suspect, but her opinion would seem to shut down any avenue of investigation by interrogation before it could start.

  19. Robert @ 15:

    The Miranda warnings tell you what your rights are. But if takes a formal statement to invoke a right, it seems reasonable to make that clear.

    Put it this way: who are the professionals in this context? If there’s a formal process, who should know what it is and clearly communicate it to the person who isn’t a professional?

    As a side comment, it’s worth noting that while situations like this are often portrayed as a conflict between “protecting rights” and “nailing perps”, in the larger scheme of things there is no actual conflict. Without protecting the rights of the accused, the system breaks down and more innocent people end up in jail and more actual perpetrators go free.

  20. My second reaction is that the cops will just forget you said that you were being silent.

  21. The law says I have the right to remain silent. But it doesn’t say its an all or nothing deal. I may choose to remain silent on one issue, but not on another. Perhaps I choose not to discuss my family, but I am perfectly happy to discuss my friends. If I say I invoke my right to silence, then the interview ends, the police have lost an opportunity to discuss my friends, whom I may have been perfectly happy to implicate.

    I don’t see that the police need to stop interrogating me because I choose to remain silent. Particularly in the case here.

    If I choose to have a lawyer present, then the interrogation should wait until he’s present.

    And I could still be silent with a lawyer.

  22. As a Libertarian, I never really understood the Miranda rulling. You have the right to remain silent whether you are informed of the right or not.

    I never understood why the onus is not on the individual to know their own rights. (that whole Libertarian self-suficiency thing I guess)

  23. @24: Miranda puts it pretty clearly:

    “The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent – the person most often subjected to interrogation – the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.

    Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

    * * *

    I haven’t read the new decision (wasn’t even aware that it was under consideration), but this doesn’t seem like an enormous burden to make a clear statement about the intent.

  24. Mark Horning @ 24:

    Why shouldn’t there be an onus on the representative of the State to communicate those rights? As I said above, who’s the professional in this context?

    Absolutely, it’s a good idea to know one’s rights. It’s also a very good idea to know and respect other people’s rights, particularly when one is acting as an official of the State.

  25. Stupid questions:

    How do I tell them who my lawyer is if I’m remaining silent?

    How do I tell them I need to go to the bathroom?

    How do I tell them that if I don’t get my medication within an hour I’m going to die?

  26. Robert @ 15 said:

    “But if you want to add something to the Miranda warning that says the police have to ask you whether you wish to remain silent or are willing to speak, fine. Assuming, of course, that the subject of the interrogation has to actually answer the question, rather than remaining silent…”

    Actually right now the text of the Miranda warning we use, after the part everyone knows from TV (You have the right to remain silent etc.) has us ask “Do you understand these rights as I’ve read them to you?” and the person has to answer yes or no. And then we ask “Having those rights in mind, do you wish to speak with us now?” And they answer yes or no. So we already offer an opportunity to affirmatively invoke the right to remain silent.

    Also, our written consent form has the person have each paragraph read to him/her and then they read it to themselves as well (after ascertaining their education level and whether they can read or write) and they initial each line and write the same yes /no answers as above. And it also includes a line after the usual remain silent/used against you/have right to attorney/ stuff it says “If you choose to speak with us without an attorney present, you can stop at any time and/or ask for an attorney at any time”. This is another statement they have to initial.

    It’s not written on our Miranda card for the read-aloud warning but I always insert that anyway.

    Like I said, I want everyone to be very aware of their rights and I don’t play tricks. As the defense attorney said, more than half the time you couldn’t stop the suspects from talking to you if you tried. They WANT to tell their side of it, they WANT to give the story they have been making up and rehearsing for the last 24 hours.

    Asking if the suspect prayed for forgiveness is completely fair; however there is no way a conviction should rest solely on that. We’ve gotten confessions by bringing up what a suspect’s mother would say if she knew what he did (this is the South, it’s worked more than once), and we have asked if they wanted to write a letter of apology to the victim or the family and they’ve done it. None of this is trickery or dirty pool. A lot of people who come through the interview room really did do the bad thing and really are happy to get it off their chests, even if that turns out not to be in their best interest 6 or 9 months later when the case is in court.

    I have no problem at all with advising suspects of their rights. I respect the hell out of Miranda. I also have no problem at all with illegally obtained evidence being thrown out. Dirty Harry notwithstanding, if I can’t make a solid case without cutting corners and breaking the rules, I can’t make the case, period. Perps walk a lot more often because investigators are too overworked and have too many cases flying at them to track down every lead, witness, etc. than because the investigators’ hands are tied by the criminals having all the rights, no matter what they say on TV.

  27. @Bearpaw Obviously, remaining silent is specific to questions about the facts of the case. You can speak to give the other information you asked about, without giving up your right to remain silent (which is actually the right to not be required to incriminate oneself).

    In reference to invoking the right to remain silent, if they say something unequivocal like “I don’t want to talk anymore” “I’m done, take me back to my cell” or “I want my attorney”, we will ask them to confirm that (“You don’t want to talk to us anymore?”) and then leave it at that.

    If someone partially invokes their right (this happens all the time) by saying “I don’t want to answer that” or “I don’t want to talk about that”, the implication is that there are other things they are still willing to talk about, and we’ll ask them directly, “Okay, but is it okay if we go back to talking about what you heard Frankie saying that day?” and they’ll be willing to do that.

  28. I had the right to remain silent… but I didn’t have the ability.
    – Ron White

  29. In my experience, most police officers are very willing to abide by Miranda- it’s one of the easier thresholds to meet, and there is a bit of a bright line. Most of the cops I knew were good men and women, who wanted someone to give them guidance as to what was ok, and what was not ok. There were exceptions, to be sure, but in general, that was the case.

    I don’t mind the idea of having to affirmatively exercise your right to avoid self-incrimination, in this light. (Different story when we’re talking about drug tests, etc).

  30. You mean like Kagan? Sorry she wrote in support of the police on this one. So had this waited till the next SCOTUS session, it would have been 6-3. Unless the Supremes do vote swapping in order to keep aligned with their homies ;)

    This could be true.

    On the other hand, some people were saying this about Sotomayor (as a former prosecuting attornery), and she ended up on the other side, so….

  31. This is a pertinent video to watch: http://www.youtube.com/watch?v=6wXkI4t7nuc

    I saw this for the first time only a few weeks ago and it was quite eye opening. It’s very possible for an entirely innocent person to get convicted of something they didn’t do, just because they said the wrong thing to the police.

  32. As the Ron White quote suggests, this isn’t at all about the right to remain silent, it’s about the ability to remain silent. All one needs to do to invoke one’s right to remain silent is to _remain silent_. This guy didn’t.

    I’m given to understand the Jesse Jay Montejo ruling has made the right to an attorney a little fuzzier, too, though not, apparently, very much.

  33. Scalzi

    I’m going to memorize the following sentence, should I ever get arrested for anything: “I want my lawyer, and I invoke my right to remain silent.”

    This is generally good advice. However, if I was being detained or arrested because of a self-defense issue where I came out on top (i.e. not dead), I would definitly preamble the above as follows: “I was the victim of an assault and I defended myself. Now I want a lawyer and I have nothing else to say until my lawyer arrives.”

    No more or less than that. I would want the fact that I believed I was assaulted and defended myself on the record.

    If I had not been arrested and I really have nothing to say, I think I would just say “I do not want to talk to you,” and leave.

    If I was being questioned and I did want to say something then I would want an attorney present before I contributed my bit to their investigation.

    And I’m sure there are a number of other permutations….

    But generally speaking, I’m in concurrence with the ruling.

  34. I skimmed the decision, and the dissent, earlier today – what I find particularly troubling about this case is that, according to the dissent, there’s some controversy about whether the suspect did in fact say that he understood he rights. He didn’t sign a statement to that effect, and the officer who questioned him couldn’t quite remember whether he had asked him verbally if he understood his rights, or if the suspect had said that he did. (That part of the dissent is Footnote 1, on page 26 of the linked PDF – http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf)

    Here’s an analysis of the majority opinion from the SCOTUSblog: http://www.scotusblog.com/2010/06/analysis-tilting-miranda-toward-the-police/

    I’d also be interested in further analysis of Justice Sotomayer’s assertion that the court never needed to reach the question of whether the suspect had waived his right to silence, because the prosecution hadn’t met its burden to prove that he did waive it.

  35. Why should saying “I’m exercising my right to remain silent” break off the interrogation?

    People have the right to remain silent, but they also have the right to waive that right.

    In other words, “You have the right to remain silent, do you have the ability?”

    And I say that as a person who thinks that confessions (especially among young people, or others that are easy influenced) are crappy things to base convictions on.

  36. Frank @36 – no, the wise thing to do is to simply say “I’m sorry, officer, but I would like to speak to my lawyer now.” The very reason people get into trouble is that they think they know what’s safe to tell the police and what isn’t, and they’re often wrong. As Jason notes, police generally don’t worry about Miranda warnings because most people will run their mouths anyway.

  37. This is generally good advice. However, if I was being detained or arrested because of a self-defense issue where I came out on top (i.e. not dead), I would definitly preamble the above as follows: “I was the victim of an assault and I defended myself. Now I want a lawyer and I have nothing else to say until my lawyer arrives.”

    I think this is generally a good idea and it is what I tell students in the legal portion of the self-defense class I teach. If the attacker was able to flee the scene, then it would also be prudent to provide a description to aid in his (or her) apprehension. Beyond that, you should say nothing about what has happened until your attorney arrives.

    This means STFU. Don’t talk to your spouse, neighbor, friend, cousin, or anyone. If you have gone to the trouble to obtain the means to defend yourself, whether it is to buy a gun, learn a martial art, or obtain some kind of weapon or training, you should also be familiar with the laws in regards to self-defense and you should also have the name and number of an attorney.

  38. “…suggests a future, ever-so-slightly less conservative Supreme Court ….”

    That would imply there’s a Democrat president out there willing to appoint actual Liberal to the bench.

  39. @Bearpaw

    “The Miranda warnings tell you what your rights are. But if takes a formal statement to invoke a right, it seems reasonable to make that clear.

    Put it this way: who are the professionals in this context? If there’s a formal process, who should know what it is and clearly communicate it to the person who isn’t a professional?”

    But that’s the point of the Miranda warnings. The warnings are designed to make sure that the professionals clearly communicate to the suspect what their rights are. There’s specific language in the warning that resulted from that case, and which is the current standard for judging whether the professionals have adequately explained to the suspect that they can remain silent, have a lawyer, etc.

    I guess you think there should be something more to the warning. I disagree, but if the court had ruled that way, I’d have no problem with it.

    @cmm

    I think there’s a difference in the Miranda warning you give, and what’s required by Miranda, but I like the added language.

  40. No more or less than that. I would want the fact that I believed I was assaulted and defended myself on the record.

    You’re like the poster child for people who think they know “what to say” to the police. You just admitted the act and now the issue has gone from there to whether you had justification. You may think you did; the court may disagree. Genius. This is why the conviction rate is in the 90% range.

    That would imply there’s a Democrat president out there willing to appoint actual Liberal to the bench.

    You misspelled “Democratic” and “liberal.”

  41. Right now I find myself wondering how this decision will interact with the recent policies of questioning persons as to their racial background / citizen status. Will AZ law enforcement respect a polite request to refrain from speech prior to obtaining legal counsel when querying someone about their legal right to be in the US?

    In the meantime, I do believe I shall throw the best expressions above for “I wish to speak with my legal counsel” onto a small business card-sized docco and make it available for use under suitable Creative Commons terms.

  42. Jimmy @41:

    It’d imply that one of the relatively young court conservatives is retiring, or Kennedy, who has been the swing vote of the Roberts court.

  43. The very fact that there’s a question about this is why we have to have 60,000 laws on the books to cover one little thing.

    This isn’t rocket science, where we need to know it out to the 50th decimal place, as well as which system we’re using. It’s simple: I have the right to remain to silent. But saying “I want a lawyer and I’m invoking my right to remain silent” cannot in any way be construed to mean I talked to them, so they can keep interrogating me.

  44. As a Libertarian, I never really understood the Miranda rulling. You have the right to remain silent whether you are informed of the right or not.

    I never understood why the onus is not on the individual to know their own rights. (that whole Libertarian self-suficiency thing I guess)

    Of course it is better if people know their rights and how to properly assert them, but it surprises me that someone calling themselves big-L Libertarian doesn’t appreciate the huge power imbalance between the state and an individual. Innocent people go to jail, in no small part because lots of innocent people don’t have any real reason to understand the procedural technicalities involved in asserting one’s rights, until they rather abruptly do, and then it is too late. And it is abruptly too late in a situation where they are having an adversarial conversation with huge implications with professionals who know not only all the technical details, but also the human angle and the interrogatory tricks, at a time when they’re completely out of their element and stressed out.

    My personal opinion (I have severe libertarian [small-l] sympathies, but given the company, don’t call myself one) is that a free society is one that affords the accused not only abstract rights, but the tools to use them in the real world.

  45. We know that cops are allowed to lie to suspects; what if a cop walks in to the interrogation room and says, “I’m your lawyer, this interrogation is over”, the other cops scoot, then the fake lawyer obtains the confession by lying to the suspect that whatever he says to him is covered by attorney/client privilege?

  46. @36 Frank: After watching just over half of the video that Gordon Tyler linked to, wherein not just the former defense lawyer but also the police officer said that you shouldn’t say even seemingly-innocent (or truly innocent) statements to the police without counsel, I would never say something like “I was assaulted and defended myself.” (shudder) Best to just say, “I want my lawyer and I don’t want to talk to you [the police].”

    @48 Earl: Aren’t police smarter than to do something that’d get the case thrown out? Also, isn’t it illegal to impersonate a lawyer–isn’t that why we have things like the bar exam, disbarment, etc.? Your scenario smells like a red herring to me.

  47. Whoops, “red herring” isn’t the right phrase. It just sounds flat-out impossible.

  48. Earl: If a cop says “I’m a lawyer” and isn’t, that’s a crime. While the cops are allowed to lie, they’re not allowed to commit criminal offenses (or they could literally beat a confession out of you).

    If the cop says “I’m *your* lawyer,” (and *is* a lawyer) they you are protected by privilege, and if he violates it, he will *at* *least* not be a lawyer any more. And since privilege is viewed as part of your constitutional right to (competent) legal representation, for an agent of the government to violate it in the performance of his duties, that, too, becomes a criminal offense (and a fairly serious one).

    tw: I would recommend you avail yourself of some of the research in to false confessions. They are surprisingly easy to get from common police interrogation techniques, from suspects who don’t realize what’s going on, sometimes without the interrogator realizing what’s going on, either. Some of the tales are frightening, with the test subject believing the provably false confession himself.

  49. Silbey @43

    You’re like the poster child for people who think they know “what to say” to the police. You just admitted the act and now the issue has gone from there to whether you had justification. You may think you did; the court may disagree. Genius.

    Being as I’m someone who has made the conscious choice to take responsibility for my personal safety as well as that of my family, I have done the research and gone through the training.

    And every self-defense instructor I have come across has said pretty much the same thing as “Steve S” @40 (which echoes my words).

    This is somewhat mitigated by your state’s laws. For instance does your State have a Castle Law? Does it have a Duty to Retreat law or can you stand your ground?

    In my State I don’t have to worry about such things since in Vermont I have a right to defend my home and I have a right to stand my ground.

    Your mileage may vary.

    So generally speaking I say: You handle it your way and I’ll handle it mine.

  50. Somewhat far from the current discussion but still on the general topic, ISTR that there was a case of remaining silent during the Salem witch panic. One suspect refused to answer to the charges. In fact, he refused to answer to anything and did not speak. Due to a quirk in the laws of the day and place, he had to say something, anything, to be tried. By keepinghis mouth shut he prevented his going to trial. But there was more latitude in questioning allowed then and he was pressed to get a response. In this case, he was literally pressed. He was placed under a board and hundreds of pounds of rocks were placed on top. He expired, still not talking. The others, who were found guilty, were hung. He was the only one who died at the hands of the law but was never tried, let alone found guilty.

    Questioning by the authorities has changed over the years, I hope.

  51. I’ve always told clients or potential clients “TELL THEM you’re not saying anything and that you want a lawyer. Make it CLEAR.”

    Unfortunately, by the time they call me the damage has usually already been done.

  52. One needs to separate the two rights involved here. The right to remain silent and the right to be free of continued interrogation. The right to remain silent is invoked by, guess what, remaining silent. However, the right to end questioning comes one of two ways: Invoking the right to remain silent or invoking the right to an attorney. In either case, the police must leave you alone (for a while).

    Here, he invoked his right to silence, but not his right to be left alone, so to speak.

  53. Sorry for the double post. The first was in response to the OP, this is in response to the “but I should explain my use of self-defense.”

    So, you want to “explain” because once they know the facts, you’ll be better off, right? No. First, there’s no inclination to believe you if you are a suspect, which is what causes the Miranda rights to be read. Second, nothing says you can’t speak to an attorney AND THEN make a statement. So, bottom line, ask for an attorney, talk to one, then make a statement if so advised.

    Being actually innocent isn’t apparent to the police, especially in an instance where self-defense is your defense. The whole point of self-defense is that it excuses what would otherwise be criminal conduct. Get it? What you want to admit you did is criminal conduct, on its face, unless they believe the second, self-serving part of your story. Wait and get that info to the police in the most advantageous way possible.

  54. Disclaimer: I am not your lawyer. I may, in fact, simply be a guy in my underwear on the internet. This ain’t legal advice, it’s commentary. Etc…

    BUT, in the interest of offering general commentary, even in the truest of “self-defense” contexts, in my former life as a criminal defense attorney, I would MUCH have preferred any theoretical client to simply ask to speak to counsel, and then say NOTHING. Really, don’t help. In the case where the attacker fled, then say “he went that way”. Beyond that? NOTHING. Your actions may be perfectly in the right, and there may be nothing to fear, but I got paid to be paranoid, and occasionally with good reason. It’s a quick trip from “I was defending myself” to “well, you see what happened was…”

    In other words, what Torgeaux said in #56.

  55. Jason B and I have criminal defense backgrounds. We are not your lawyers. Our advice is general, and not for YOU in particular. Proceed with caution.

  56. Also keep in mind that unlike on TV, Miranda is only required to be read/advised in a particular circumstance: the suspect is being questioned AND the suspect is in custody/about to be in custody/not free to leave.

    We have folks we lock up who taunt us in the booking room about how they are going to beat the charge because the arrested officer “didn’t read me my rights”. He’s in custody but we aren’t asking him anything, so no problem.

    There is also the circumstance when the person is in custody and making spontaneous statements. As long as no officer asks a question of any kind, you are still good. If the officer needs to ask follow up or clarification questions, then you bring out the Miranda card. Most of the time that makes the guy hush up, but some will keep talking anyway.

    On the other end of the scale, there’s the self-defense situation one of the commenters is describing. Generally in that situation he is not in custody nor about to be taken into custody (the latter is a gray area where it’s better to have read the person Miranda than not have done so) and he can break off the interview and depart whenever he wishes. So no need to advise Miranda. Regardless of whether the text is read to a person, however, they always have the right to remain silent and the right to have an attorney present — the Miranda decision and requirements govern when the police or other authority have to advise someone of their Miranda rights, not when those rights apply.

  57. @JasonB at #56 — Oh there are few words people on the cop side like to hear better than “what had happened was…” Settle in and take notes, here comes the story. The only thing better is if someone starts swearing to god/on their mother’s grave/on their kids that they are telling the truth. Literally every time someone has said that to me, it turned out they were lying their face off.

  58. Jason B @57

    BUT, in the interest of offering general commentary, even in the truest of “self-defense” contexts, in my former life as a criminal defense attorney, I would MUCH have preferred any theoretical client to simply ask to speak to counsel, and then say NOTHING.

    I’m sure that is generally good advice. But there are mitigating circumstances in self-defense situations. So let’s say you defended yourself successfully and the assailant is down. Now you are duty bound to make a 911 call ’cause you can not leave him (or her) there to die. At this point it is in my considered opinion that you should get on the record as saying you were attacked, you defended yourself, and medical assistance is required.

    Another instance is where the assailant flees. You certainly do not want the criminal calling 911 and identifying you as the perp. You want to do it first and be on record as having done so.

    The trick is, I have been instructed, is to say the minimum to establish your role as the victim, and offer no details until your attorney is present. Even better is to get your attorney to delay, if possible, the interview for a day because the stress of the situation can affect your memory and you do not want to make statements that will prove to be untrue later. The most common of which, I’ve been told, is how many shots you fired.

  59. I’m in substantial agreement with Jamie @47 – especially this part:

    “My personal opinion (I have severe libertarian [small-l] sympathies, but given the company, don’t call myself one) is that a free society is one that affords the accused not only abstract rights, but the tools to use them in the real world.”

  60. Mark Evans@53:”He was the only one who died at the hands of the law but was never tried, let alone found guilty.”

    I heard that story when we visited Salem a few years ago. According to the law at that time once someone entered a plea in response to a formal accusation, the sheriff could confiscate his property. The farmer in question knew this, and died under questioning without entering a plea. Consequently his property went to his heirs rather than the Crown.

  61. Frank:

    Your scenarios are quite different. First, your call to 911 is not subject to Miranda, though “it can and will be used against you in a court of law.” Second, why? Why not tell 911 that person A is at location B, and is injured in X fashion?

    Your second instance is similar. Can we assume in the “he fled and is going to call 911″ scenario that he’s going to lie? I think you imply that. So, the police will have two contradictory statements, from two guys who each called 911 to “establish their role as the victim.”

    In neither of your scenarios is Miranda implicated. However, if you go to the station, or are questioned in a custodial setting (you are not free to leave), then asking for an attorney and heeding their advice is the most prudent course.

  62. As my co-counsel torgeaux is saying, what we generally want as criminal defense attorneys can be summed up as follows: “less is more”. Remember, we’re not coming at this from the perspective of an interest in big-J justice, we’re thinking about it from the perspective of a retained attorney whose interest is in representing his/her client. Our goal? Minimize the impact/risk to the theoretical client.

    The overarching reason behind our opinion is this: there are only so many things that the prosecution has to prove to establish its case against the theoretical client. One of those is “this guy did it”. By saying “I defended myself”, you’ve conceded the point. Might be totally true, and accurate, and a legitimate defense, but I want as many chances to undermine the case against my theoretical client. It is, and always will be on the state to prove its case, not on the defense to prove innocence.

    Regardless, in your scenario, Frank, I would much rather you have called 911 and said “I’m at X address. There is an injured person here.” You will have a chance to tell your story, but the fewer times you tell it, the happier your theoretical defense counsel will be. Ditto your story where the assailant flees, and calls 911- you could, I suppose, call 911 and say “shots were fired at this location”. Again, fewer renditions of the story.

    These opinions (not advice) are given out of an excess of caution, akin to your desire/interest in self-defense. The last thing I want is to have a client defending himself wind up talking himself into more headaches/charges than are absolutely necessary.

  63. Let’s just pretend that something happened. (what it is doesn’t really matter. Maybe a guy mugged you and you somehow managed to defend yourself and end up killing the mugger. Maybe you’re the mugger. Doesn’t matter.)

    Whatever just happened attracted the interest of law enforcement. They arrest you and take you downtown.

    There is nothing you could say right then that would make any difference compared to if you waited for your lawyer and then have him say it for you.

    Absolutely Nothing.

    Even if you assume they’re “good” cops, whatever you say isn’t going to convince them that you’re innocent. You’re an idiot among professionals at this point. They think you’re potentially guilty enough to question/arrest you. They’re not going to cut you loose because you tell them a nice story. They’re not going to give you a nicer cell. They’re not going to let you go with a warning to be careful next time. They’re doing their job.

    And on the off chance that the cops are “bad” cops, then all the more reason to shut the hell up. If they start mistreating you, putting you in a cell with Big Larry the repeat offender, or put you into “stress positions”, or keep you awake for 36 or 48 hours, you might be tempted by the twisted logic that if you just tell them you’re “innocent”, then this “bad” cop will suddenly turn “good” and let you go. But, dude, seriously? If you run your trap and say anything that indicates you just committed a different crime, even if you somehow manage to exonerate yourself of the original crime they think you committed, you’ve just made things worse.

    Once the process starts, pretty much nothing you say is goign to make it shorter, and a lot of people say stuff that makes it much worse.

    It’s the temptation of best case scenario leading to the worst case outcome. If I talk, maybe it’ll be over right now. That’s the logic. But if you talk, you might make everything a whole lot worse.

    I wouldn’t even tell a lawyer to be his own lawyer and start talking. You’re too emotionally wrapped up in things. You may succumb to the “if I just explain it, they’ll all understand”. What is the saying, a lawyer who represents himself has a fool for a client? And non-lawyers think they know better?

    Nothing you say will make it better. And there’s a LOT you could say that could make it worse. Put your ego aside, admit to yourselvf you’re over your head, politely ask for a lawyer, and then shut the hell up.

    Anyone who thinks they’re smarter than that has a fool for a client.

  64. At this point it is in my considered opinion that you should get on the record as saying you were attacked, you defended yourself, and medical assistance is required.

    1. Are you a criminal defense lawyer?
    2. I love this idea that there’s a “record” that will be examined in forensic detail and will reveal what happened to all concerned. You might want to http://en.wikipedia.org/wiki/Adversarial_systemread up.

    The trick is, I have been instructed, is to say the minimum to establish your role as the victim, and offer no details until your attorney is present.

    Were these instructors criminal defense lawyers?

  65. Let me add to what Greg @66 is saying: If nothing else, waiting for your lawyer gives you time to calm down after one or several very stressful situations. (Like being arrested) I don’t know about you, but when I’m nervous or excited, I tend to babble. I phrase things badly.

    Even if there were no other benefits, bringing in someone who’s not amped up on adrenaline is just a good idea.

  66. It’s sad, and true, but all you can do, talking to cops, is to make things worse for yourself. To a certain extent, you make things worse for those who will try to defend you. You speak English-American, they hear English-Cop. Different languages with a few common expletives. (The gap is larger if you speak English-Engineer or a related dialect!) This decision doesn’t change that, and it’s not really a question of law; it’s a matter of how human nature works.

    “I was in fear for our(my) lives(life) (; the others (describe) went that way.) I need medical attention and to speak with my lawyer before I can answer any other questions.” Repeat until lawyer shows up, and she may be having you repeat it until you’re sick of it. She’s probably right.

  67. Both the originial book and the TV versions of “Homicide” have a wonderful treatment of this issue. Basically: “shut up,” but presented delightfully. (And this advice applies to all values of suspect: innocent, etc.)

  68. Jason B @65

    The overarching reason behind our opinion is this: there are only so many things that the prosecution has to prove to establish its case against the theoretical client. One of those is “this guy did it”. By saying “I defended myself”, you’ve conceded the point.

    Good points to consider.

    Thanks.

  69. Am I the only one here who is saddened by the fact that the best approach for dealing with peace officers, in terms of raw self-interest, is to never tell them anything?

  70. What is more confusing is they read him his Miranda rights, he says he understood them, he didn’t talk for awhile, then started talking. Afterwards he says “Oh I didn’t want to talk.” Why did he talk if he didn’t want to?

    Maybe in this instance the confession is useable, but I don’t see extrapolating this as far as some journalists are. Or even as far as the majority opinion was written. But of course they wrote it that way instead of as narrow as I would have liked.

    I think this points out another problem: I don’t really feel we should be using confessions anyway. Sit you in front of angry cops for hours and you want to get out of there. Tactics like good cop bad cop are specifically designed to increase stress, and there have been enough cases of innocent people confessing that I think the entire idea of confession needs to be revisited. If you voluntarily walk in and confess out of guilt that’s one thing, but if you are guilty, I imagine investigators should be able to gather enough evidence against you to not need a confession.

    I am lucky enough to have grown up with an attorney for a father, who always warned me to never say ANYTHING at all, just call him and keep my mouth shut. Having never been arrested I never had to try that, but I imagine that others who don’t have “connections” would be more scared and frightened and have less will to resist.

  71. So, the spin on the reporting of this decision has been weird and really, really misleading. As I understand it (I am a lawyer, though not a criminal one) here’s what the decision actually did.

    Before the decision: In order to invoke your right to remain silent, you had to remain silent. There was no way to stop the police from tossing you into an interrogation room and working you over. Your Miranda reading was to let you know that you could theoretically not talk, but cops can be very good at getting you to do it anyway, and they were allowed to. If you hadn’t invoked your right to an attorney, whatever you said would be admissible in court.

    After the decision: You can verbally invoke your right and all questioning has to stop there.

    *That’s* what was decided. The presentation in the media of this decision as “you have to speak up to invoke your right to silence” was probably to get some good headlines, but it’s not effective communication. Post-decision, you can substantively invoke a right to silence that prevents cops from trying to induce you to talk.

  72. I heard about this case as I was taking Psycology and Law at a local university. We were taught at that time to say, “I will not answer any questions until after I have been appointed and spoken with my attorney.”

  73. In addition to all the deconstruction of whether or not to claim to be a victim, I’d like to point out another point of post 36:

    If I had not been arrested and I really have nothing to say, I think I would just say “I do not want to talk to you,” and leave.

    I am not a lawyer. My understanding is that if you wish to terminate an interview with the police, the thing to do is ask, “Am I free to leave, or am I being detained?”

    Just turning and leaving may be interpreted as fleeing the scene and could cause violence.

  74. Frank @71: Jason and torgeaux are correct. And that’s what I was getting at in @39: you are not a criminal defense lawyer, you do not know what it is or is not smart to tell the police, so deciding “oh, I’ll just say X because that will totally help me” is not going to do much except cause grief for your attorney down the line.

    If you have “been instructed” by somebody who teaches self-defense or gun safety or whatever, please ignore that advice unless the person who so instructed you is also an attorney. They are not experts in the law and have not had to personally deal with the end result of somebody putting their foot in their mouth.

    True story, in the civil rather than criminal context: a contractor called up one of my colleagues mad as hell that he had been sued in a products-liability case. He proceeded to rant about how he never made the stuff, he just sold it, so it was ridiculous that we were suing him and blah blah and no, he didn’t have a lawyer and didn’t need one. Of course, what he was doing was admitting to liability on all kinds of other issues. Luckily, my colleague is a decent fellow and finally got him to shut up long enough to say “Here is a number to call for legal help. You need a lawyer. I am going to forget we had this conversation. Have your lawyer call me back.”

    Michael @77: it is DEFINITELY smarter to ask if you are free to leave. There is a lot of law that turns on whether or not the person was or wasn’t in ‘custody’, whether or not they felt they were free to leave, etc., and politely asking the officer if you are free to go establishes that right away.

  75. My advice as an instructor is based on my own research, my own experience, and conversations I have had with other criminal defense lawyers.

    First of all, I am a lawyer, though I no longer do criminal defense. The legal portion of my class is the longest part. We spend more time on that then we do on the range. I figure that most people can practice shooting on their own or will take other classes. Most will not go home and pour through case law and statutes.

    In dealing with the police, I point out that they are not obligated to say anything and it will not hurt them in any way to say nothing. I also point out that they may tell the police:
    1. Their name
    2. That they are the homeowner (if this happened at home).
    3. That they were attacked.
    4. They want to talk to their attorney.

    In other words, “I am Joe Homeowner. I live here. I was just attacked and I would like to speak to my attorney.”

    That is it. Notice there is no statement about having to defend oneself nor is their any admission of any kind of action. As cheesy as this sounds, we then practice going over these statements. Occasionally, I have a friend come in who is a retired detective and he asks the questions. If the student is uncomfortable with this or doesn’t want to make a statement, then I encourage them to just skip to step 4.

    I have dealt with clients in all sorts of contexts that have said too much. I don’t/wouldn’t/didn’t have a problem with any client who has said what I have listed above. Most of my problems have been with clients who felt the need to explain everything that has happened in fine detail.

    I have the name and number of several good criminal defense lawyers. I have no plans to defend myself in court if I am ever involved in this kind of incident.

  76. Steve S

    1. Their name
    2. That they are the homeowner (if this happened at home).
    3. That they were attacked.
    4. They want to talk to their attorney.

    In other words, “I am Joe Homeowner. I live here. I was just attacked and I would like to speak to my attorney.”

    That is it. Notice there is no statement about having to defend oneself nor is their any admission of any kind of action.

    Thanks for the clarification.

    But it seems to me at some point, sooner rather than later, they are going to want my gun which, it seems to me, I should provide without conditions.

    And it seems to me that whether or not I said I defended myself, the gun says I did the deed. Would it not be prudent to add the “I defended myself” part?

  77. The ruling does make sense in a way. How are the police supposed to know that you are _invoking_ your _right to remain silent_ unless you tell them? To invoke your right to an attorney you have to tell them. I’m not an attorney (and I don’t even play one on TV) but as I understand what I’ve read if you tell them you are invoking your right to remain silent, then the questioning has to stop. If you don’t tell them, they can keep asking questions until you finally open your mouth and put your foot in it (which this guy apparently did). Remember, “Anything you say can and will be used against you in a court of law.” When you tell the police that you are going to remain silent, remember to ask for an attorney before shutting up.

  78. The core: All you have to do to exercise your right to remain silent is to, you know, STFU and remain silent. If you wish to invoke that right in order to end active questioning by law enforcement you actually have to communicate said invocation to them. Silence does not do that — police are not required to be psychic.

  79. Frank @80: no, it would not be prudent, as people have explained over and over again.

    You keep making the same mistakes countless of people who are guests of the State make: they are smarter than the process, they are sure they know exactly what to say that will get them out of trouble, and they believe they can immediately tell what the police know, think and can prove. Also, they really want to tell their story right flapping now instead of running it by their lawyer first.

    Jason already pointed out that if you say you were defending yourself, you are in effect telling the police “Yes, it was me who shot this guy.” Congratulations on your unprompted confession! You just saved a prosecutor a lot of effort having to prove that the other guy was shot, on purpose, by you, with your gun; now the DA can get right to quibbling about whether your actions were legally justified self-defense or not. I suppose you could say that you absolutely want your defense attorney to earn her fee.

    I think it’s possible to disagree with Steve @79 about whether even that is too much, but please note that he is relying on what actual defense attorneys have told him and his own legal expertise, not “the guy who teaches my krav maga class says….”. And the information Steve suggests you impart has nothing to do with your actions. It identifies who you are, what the other guy did and that you want to speak to your lawyer immediately.

    As I said above, I do civil law, not criminal; I’m going by what every criminal defense attorney (and not a few prosecutors) I’ve ever spoken to have said about What Not To Do When Busted, and by the raft of crap I see civil litigants get themselves into when they think they’re clever.

  80. Frank, Mythago explained it very well as to why you should not say that you defended yourself. My state (MI) is a “castle doctrine” state, so there is already a rebuttable presumption that a person who breaks into your home is there to cause you great bodily harm, so saying you defended yourself is not really going to help you and may hurt you.

    I know that other lawyers disagree with my take, but I think this is an area where reasonable minds may differ. I certainly would be just as happy if a client said nothing as I would if they said what I suggested. Again, I should point out that I no longer do criminal defense (because I like to get paid once in a while), but I do try and keep up with the field as I teach classes every so often.

  81. I think mythago and Steve did a great job of handling the question- this is one of those times that I wish we could do a brief bit of real-time roleplaying. Frank’s impulse is totally understandable, and meritorious, even. However, with about 10 minutes of questioning by cmm, Steve, mythago or myself (not to be arrogant about it, but asking pointed questions is one of the job descriptions), it would be very apparent why the impulse to help could get you into serious trouble in a legal setting.

    (Leaving aside all of the war stories I could tell you about too-smart litigants)

  82. I think it should be inherent, as well, that those rights be automatically invoked without having to explicitly tell the cops what 99.999999% of people they catch would already prefer.

    But anyway, like you say, it’s probably not that big of a difference as far as the cops being one up on the rest of society.

    I’m waaaaaaay more concerned with this reasoning:

    “In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.”

    http://gizmodo.com/5553765/are-cameras-the-new-guns

  83. There’s a radio personality in my area whose promotional ad features the line, “She has the right to remain silent. She just doesn’t have the ability to.”

    That would appear to be what the test is, now.

    Opens up a new line of thinking. If I have the character and discipline necessary to remain silent, I probably also have the self-control sufficient to resist the need for immediate gratification, which drives a lot of crime.

    Actually, the most dangerous thing would be to isolate a suspect in a cell, with a computer that has access to exactly one Internet page, and that page be the police blog. How many suspects would resist the temptation to blog?

  84. Actually, there are definitely scenarios where talking to the cops could help you out. I’m a prosecutor, so I’m not speaking without experience here.

    Try the following:

    1) Suppose that you are wrongly accused, but you know the identity of (or have a description of) the person who really did it. Providing the cops that information could give them an investigatory lead that gets the real perpetrator and exonerates you. (Which, if you’re innocent, is something you should be very interested in.) Especially right at the beginning, when the police are still sorting things out, they might take your information to voice a lookout that bears fruit by stopping the real perpetrator.

    2) Talking honestly (i.e., in a way that will be corroborated by the physical evidence and other witnesses) could convince the police/prosecutor that you didn’t do it, or could at least give them enough doubt that they won’t oppose your release while they investigate.

    3) Giving part of the story (like the suggestions some have made here to just say “I was attacked”) without further details might hurt you in the long run. Generally, if you’re in a situation where your Miranda rights apply (e.g., custodial interrogation right on the scene) and choose to say nothing, then the State can’t use your silence against you at trial. (Why? Because you were simply relying on your rights, and the State can’t punish you for that.) If you start making statements, then the situation can get murkier.

  85. #88: Ha, ha, ha. That’s hilarious. At least you state upfront that you’re not acting in the interests of the suspects, being a prosecutor and all. That is the best advice a prosecutor could give any suspect, but the advice is all in the prosecutor’s favor.

    In each of your three examples, the suspect can do all that AFTER talking with an attorney.

    Don’t be suckered by terrible advice, folks.

  86. #89: I’m not sure how you manage to interpret that post as recommending that a suspect speak without a lawyer. The poster is simply saying that there are specific cases where it is better to speak than to remain silent.

    After all, that is part of what your attorney is for: to advise you on what needs to be said and how to say it. If it’s *never* advisable to speak, then why would you need a lawyer just to tell you to shut your trap? A novelty musical greeting card could do that, and be cheaper and more portable to boot.

  87. The poster is simply saying that there are specific cases where it is better to speak than to remain silent.

    I read it as saying it’s better to speak without a lawyer about certain bits of info than to remain silent.

    Especially the bit that says: Especially right at the beginning, when the police are still sorting things out, they might take your information to voice a lookout that bears fruit by stopping the real perpetrator.

    That to me sounded like “don’t wait for a lawyer”.

  88. It’s probably best to speak with a lawyer present, innocent or not. Especially if you’re the only one in the room with the police.

    How many people are in jail that are innocent because of no other reasons than the color of their skin or because the cops “need” to solve the case? Death row, even?

  89. seenalotofinterrogations #88, why can’t any of those statements be made with an attorney present? Nothing you say makes it a bad idea to politely ask the police whether you are free to go or not, and if you’re not, to politely say that you’d be happy to talk to them but you’re pretty shaken up and you need to have a lawyer.

  90. John Murphy: Because it’s posed in a, “let me take the contrary view here” fashion, and assumes both speaking to police and early which normally presuppose it’s before you’ve had access to an attorney.

    If it isn’t about making those statements sans advice, then my comments are inapplicable. However, his view also closely mirror the views of professional prosecutors as a rule. Speaking of which, did you know the name of the current chief prosecutor for military commissions is named John Murphy?

  91. #94:
    I didn’t get that from his post, though apparently others did. But it still seems rather rude to automatically assume the most disingenuous interpretation and then berate him for being disingenuous. The post was at worst unclear on the point.

    (And yes, I did know about my doppleganger. A couple of sheriffs and a few judges by the same name, too. Those folks, plus the sheer number of obituaries, make the Google alert on my name very interesting reading every day.)

  92. 95: If I thought it was a reach to assume that he meant without an attorney, I’d agree, but I think it was the most obvious interpretation of his remarks, though clearly not the only one.

    The google alerts on my name bring up pretty much just me, but I don’t have quite the common combo you have. I hope you have additional identifiers on your alert. Engineer, maybe?

  93. 96: I suspect that the difference hinges on “quickly”. The speed at which these things go is not what the rest of the world would consider by any means quick. However, I will grant a point I had not thought of before: that the original post was weakened by not acknowledging that some of this information might come better from other witnesses.

    [I've got a couple different alerts, yeah. The one on just my name is mostly just for entertainment (though oddly I *do* show up personally from time to time... when I post on Whatever ;) Even when I include my alma mater and workplace, though, the results are only me half the time. 'Robotics' used to be better, but I'm not the only one there, either.]

  94. The post was at worst unclear on the point.

    the post is, without assuming anything about intent, at worst giving ambiguous advice which at worst could land an innocent person a lethal injection.

    Telling people “talk to the cops” when what he really meant(1) to say was “talk to the cops as soon as your lawyer shows up” is bad advice because it could quite easily be taken as “talk to the cops, even without a lawyer”, which can easily get people in trouble.

    (1) assuming that’s what he really meant.

    And giving ambiguous advice about something that the entire thread is discussing, doesn’t really impress me very much with the attention to detail, or lack thereof.

    I’m willing to add in a little bit of assumption, though.

    Either seenalotofinterrogations (A) misread this entire thread or (B) is saying “talk even without a lawyer”.

    (A) because no one here is saying never talk to the cops even after your attorney shows up. So if seenalotofinterrogations is assuming someone here is saying “never talk even with a lawyer” and decided to provide “definite scenarios where talking to the cops could help you out” as a counter to that, then he completely misread the thread.

    (B) because the vast majority of people here are saying “don’t talk till you have a lawyer”, and seenalotofinterrogations seems to be objecting to something on this thread, it would seem that, with very little assumption at all, (and assuming he didn’t completely misread the thread) that he is indeed suggesting talking without a lawyer.

    Lastly, but not leastly, given that his first “example” (“Suppose that you are wrongly accused, but you know the identity of the person who really did it.”) is nothing more than the cliche police response that goes something like “If you didnt’ do anything wrong, then why am I talking to you?” (i.e. guilty until you prove your innocence), I don’t think it is really too much to assume that he really meant talk without a lawyer.

    If he really didn’t mean that, then he seriously needs to work on the ambiguity of his posts when handing out free legal advice.

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