By Mark David Blum, Esq.
Folks, tell your friends, your children, your spouse or lover, your parents, and everybody you know. The constitutional Right to Remain Silent is not a right; it’s an obligation. When dealing with police, especially when you are invited into their house, remember the magic words … “I want a lawyer” … and then shut the hell up.
It is flatly wrong to assume that what you say “may” be used against you in court. I guarantee you that everything you say WILL be used against you. Anything you tell them that helps you will be forgotten and police will later “not remember” or even claim you never made such a statement. Once you ask for a lawyer, police must cease all questioning though they are likely to keep trying. But, from that point forward, nothing you say can be used against you unless your lawyer is present.
So, demand a lawyer and then shut the hell up. If you blurt something out, it will be admissible. At the same time, once you have asked for a lawyer you cannot waive your right to have your lawyer present and agree to speak to police alone without your lawyer being present. It is called “the indelible right to counsel” rule. Once you ask or once a lawyer has appeared, your right to have a lawyer present for any questioning sticks to you like glue. Police may try. Yawning helps to get through it and it annoys them.
Most people who find themselves at a police station, innocent though they may be, believe that if they just chat away and tell everything they know, the police will let them go. While that may indeed be true and we certainly want citizens to cooperate with police, what is said by you to a police officer will be documented, recorded, and made a part of the case file and investigation but only if it helps them. You don’t know what the police know, don’t know, or are seeking. If they think you did something nefarious, you will not be able to talk your way out of it. All you can do is make your situation worse. I cannot tell you how many cases in which I have been involved could have resulted favorably for the accused except for the fact that the idiot told police everything police wanted to know; confessing even to crimes they may not have committed.
So, when you find yourself in the 3foot by 4foot room at the police station and they come in and start questioning you, let the first words out of your mouth be you want your lawyer present. Police are allowed to lie to you, to use trickery, and to intimidate you into giving up your right. Not only are they allowed, but you can bet your ass they will. “Why do you need a lawyer? Are you guilty of something?” “What are you trying to hide?” “If you have your lawyer here, we could be here all night.” "Lawyers just make things worse." These are some of the things you will be told. Stress levels will climb. You will have to pee. The air will be stale and warm. Your stomach will be growling from hunger. The unknown is a great weapon and it will play tricks with your mind. It is how you are ‘prep’d’ for questioning. All that will be going through your mind is "how do i get out of here."
Always remember that goal #1 is to get out of the police station with your liberty intact. Yes, you may be inconvenienced by having to wait for your lawyer to arrive and be sitting there not knowing what is going on and be confused and get impatient. Better to wait a half hour or an hour at a police station for your lawyer to get there than to sit for 25 years in a prison because you said something stupid during an interrogation.
You cannot talk your way out of an arrest if police have evidence against you. If they suspect you but have no evidence, your fat mouth can make the difference. You will be encouraged to talk your way out of your situation. Trust me, you cant. Ask for a lawyer; nay, demand your lawyer before anything is said. If you cannot afford one, tell police you want a lawyer but cannot afford one. Do not sign the Miranda waiver they will show you. In New York, the magic word is “lawyer”. Once you ask for one, once one has appeared, or once you have been charged, you have the absolute right to have an attorney present at all times during interrogation. Despite what Detective Brisco always says on Law & Order, having an attorney with you will not worsen the ultimate outcome. Police are allowed to lie to you and are highly trained to elicit confessions. Do you really want to be alone against those odds?
It can be the smallest thing you say or don’t say that makes the difference between freedom and arrest. If you are guilty, you should absolutely never say a word because you are not going to talk police out of charging you. Generally if you are in their house, it is because you are a suspect and they are working to find a way to file that charge. Your first instinct is to cooperate, to try and minimize your involvement, or to pass off the blame to another person. It is a panic response to the custodial setting in which you suddenly find yourself. Saying something as simple as, “I didn’t hit him in the face” could get your charged if only the actual perpetrator knew the victim was hit in the face. This is where the lawyer comes in -- to prevent you from saying stupid shit.
There is nothing wrong with cooperating with police as a witness. This is a good thing and keeps us all safe. If however you are the accused or a suspect, it aint about society anymore – it is about your personal liberty and freedom. Do not sign any waivers of your right to a lawyer and agree to speak with police alone. There are a lot of them; highly trained and skilled. There is only one of you. Do not go into that lion’s den alone. Have your lawyer at your side, Never in all my years as an attorney have I ever heard of someone talking their way out of or lessening a charge without the assistance of counsel.
No, asking for a lawyer is not evidence of guilt and does not effect the outcome of the interrogation to have your lawyer there. Police will tell you things to scare you off but this is the time to be strong and adamant. Asking for a lawyer is not evidence of anything other than you are not stupid enough to try it without one.
If you do not heed this advice and ignore your rights, that is your choice. But, if you do give up your rights, in the end, all your lawyer may be able to do is escort you to the gallows.