SILENCE IS GOLDEN–PRISON BARS ARE STEEL

SILENCE IS GOLDEN: WHAT TO SAY--ANS NOT TO SAY--TO THE POLICE IF QUESTIONED
SILENCE IS GOLDEN: WHAT TO SAY–AND NOT TO SAY–TO THE POLICE IF QUESTIONED

What do you say to the police if they stop you to ask you about anything where you think it is even remotely possible you might be suspected of a crime? Invoke your right to remain silent and to see an attorney. Otherwise, Nothing.

We all know “our  rights,”  Miranda v. Arizona, 384 U.S. 436 (1966), because we all grew up watching TV.  Too few people use these rights. Instead, they talk themselves into deeper trouble.

EXPRESSLY ASSERT YOUR RIGHT TO REMAIN SILENT

You have a right to remain silent. Use it. Today, since Berhuis v. Thompkins, 560 U.S. 370 (2010), you have to expressly invoke your right to remain silent, stating clearly that you are not saying anything. The police are not your friends. They are not, as a group, interested in getting the bad guys. They are interested in closing a case by making an arrest.  You will do as well as anyone else. Don’t make it easier for them.

Anything you say can and will be used against you in a court of law. Believe it. Trying to talk your way out of trouble will almost always dig you deeper in. Police reports often contain many statements you didn’t make, and there is no one believable to say you didn’t make them. Why make give the police real admissions you will be stuck with? Your explanations will be transformed into incriminating statements. You will be caught in contradictions, or contradiction will appear in evidence that destroy your credibility.

The police are trained interrogators, legally allowed to lie, and skilled at getting you to say things that you will really truly wish you hadn’t said. Lawyers are trained interrogators. Only the foolhardy among us would put ourselves up against a beat cop or a detective. We can’t lie, for one thing. It’s true: we can’t. They can.

“But I’ve done nothing wrong, what do I have to hide? I’ll just explain things to them and they will let me go home.” I hear that a lot talking to people in holding cells. Just because you’ve done nothing wrong doesn’t mean you can’t be arrested. The standard is probable cause, a low standard. It’s roughly a reason that a reasonable person would have to think you had committed a crime.  Invoking your right to remain silent is not such a reason. Anything else you say might be.

Don’t say anything else apart from invoking your rights. Just about anything you say that is not a 500 candlepower assertion of your Miranda rights probably constitutes a waiver of those rights that allow the police to continue to question you. Oregon v. Bradshaw, 462 U.S. 1039 (1983). There the suspect asked, “What’s going to happen to me now?” The Supreme Court treated that as a waiver allowing continued questioning.

EXPRESSLY INVOKE YOUR RIGHT TO AN ATTORNEY

You have a right to an attorney. If you cannot afford one, one will be provided to you. You must assert your demand for an attorney clearly in a way that cannot be misinterpreted. Davis v. United States, 512 U.S. 454 (1994). “I’m asserting my right to remain silent and I want to speak to an attorney.” That should do it.  There is no magic formula, just as long as it crystalline. If you ask for an attorney to be present while you are detained, the police must stop questioning you until your attorney arrives. United States v. Edwards, 451 U.S. 477 (1981). If they don’t, repeat the mantra: “I’m not saying anything and I want to see a lawyer.”

If the request is not clear and unequivocal, it is ineffective. Davis v. United States, 512 U.S. 452 (1994). It is up to the police to decide whether to stop questioning you or indeed, to provide you with an attorney if you have not made it crystal clear you want a lawyer. Don’t make the police guess whether you want a lawyer and therefore must stop questioning you. Most courts have ruled they don’t have to.

If the police ask (in violation of Edwards), “What do you need a lawyer for? They only gum up the works. Just answer a few questions and then you can go,” the answer is, “I want my attorney to advise me on that point.” We do gum up the works. That’s our job. We will advise you to say nothing, in case you wanted to know.  And as with invoking your right to remain silent, invoking your right to an attorney is a good idea whether or not you think you have done anything. Don’t worry whether it might make you seem guilty. If the police didn’t think you might be guilty, they would not be detaining and questioning you.

SUPPOSE YOU DON’T HAVE AN ATTORNEY OR CAN’T REACH YOUR ATTORNEY

If, like a lot of people, you do not have a regular attorney, or cannot remember his or her number, or can’t reach him or her, one will be provided for you. A public defender. It is ok to add to, “I want to see an attorney,” “Please provide me with one.” The cops ought to provide you with an attorney, that is, call the P.D., after you have demanded to see one. If they don’t, it’s safe to ask for one, if that’s all you do. You are not stuck with the P.D. or for that matter with any lawyer just because that’s the first (or next, etc.) lawyer you see. Many P.D.’s are, by the way, smart, dedicated, hard-working people every bit as good or better than almost any private attorney.

IF YOU HAVE AN ATTORNEY

If you have a lawyer and know his or her phone number, it’s also OK to say, after you have asserted your right to see an attorney, “I want my phone call,” or “Please let me use the phone to call my lawyer,” words to that effect. Nothing more. If you reach your attorney say nothing in the presence of the cops. Not, “They busted me while I was selling drugs,” or “they caught me robbing the store.” Just, I”m in custody at ___________” or “I’ve been arrested and I’m at ____________”  (it is OK to ask the cops the address where you are detained).

It’s OK to say, if you have been arrested for selling drugs or robbery, what you have been arrested for. Don’t say that you did it, even if you did. And talk to your lawyer, P.D. or private, outside the presence of the cops during this exchange if possible. If not, say where you are, will the lawyer please come, you’ve been arrested. Leave it at that.

Eventually, the cops will want to see you with your lawyer. If your lawyer doesn’t advise you to take the fifth, to refuse to answer all questions because the answers may tend to incriminate you, get a new lawyer. And take the fifth anyway.

TWO EASY RULES: I’M SAYING NOTHING AND I WANT A LAWYER

In short, you have two primary responses to police questioning. The first is, “I’m not saying anything.” The second is, “I want to see a lawyer.” Repeat as necessary. This is often easier to say than to do in the scary situation, inherently coercive, because that is when Miranda applies, of custodial interrogation. It’s worse if you did do something because there is an impulse to confess. So, two easy rules: Say you’re saying nothing. Say you want a lawyer. Do not deviate from these rules.

The “remedy” for a Miranda violation is suppression. The statements cannot be admitted against you in court. However, statements illegally obtained in violation of Miranda can be used to impeach you, undermine your credibility and make you look like a liar. See, e.g., Harris v. New York, 401 U.S. 222 (1971). So it’s much better if there are no statements, whether legally obtained by waiver or illegally obtained by a violation of Miranda, to incriminate or impeach you.

There are likely to be enough surprising statements in the police reports and testimony that you didn’t make and waivers or ambiguities you didn’t commit. The police are not allowed to lie about that to the court because that’s perjury, a crime, but when was the last time you heard of a cop being prosecuted for perjury? There has to be evidence, the prosecutors don’t score points with their bosses going after cops, and your word won’t do.  So don’t make it easier to put you behind bars. It’s easy enough as it is.

If this seems like a minefield, that’s why you need a lawyer.

Remember two simple easy rules, whether you didn’t do it or especially if you did. Whatever the police and prosecutors tell you, all you have to say to them is:

  1. I’m not saying anything, and
  2. I want to see a lawyer.

That is all you say.

A COMMON MISINTERPRETION

A lot of clients in jail or on bond tell me, The cops didn’t read me my rights. Does that mean the arrest was improper?

No, it does not. As stated, the remedy for a Miranda violation is suppression of the un-Mirandized statements. It’s not that you walk.  If the cops don’t ask you any questions and don’t read you your rights, they can arrest you because they think they have probable cause (and a judge agrees at your preliminary hearing) (and they always find probable cause). If they ask you questions and don’t read you your rights, and you don’t answer the questions, the arrest is fine if there is probable cause. If they don’t ask you questions and don’t read you your rights, but you make statements anyway (it happens all the time), the arrest is fine if there is probable cause, and the statements are admissible.

Yes, the cops ought to read you your rights. That’s proper procedure. But if they don’t, and you make a statement, orally or in writing, the statement is arguably inadmissible. It’s suppressed. But you still are properly arrested if there’s probable cause and no other violation, such as an illegal search.   Make things simple. Don’t say anything except, I’m not saying anything and I want to see a lawyer.

IS IT EVER OK TO TALK TO THE POLICE?

If it’s totally clear that you are not a suspect, and you have to be completely certain that you’re not, then it is OK to talk to the police. Say, for example, you are a middle-aged white guy in a suit and tie, on foot, who is a witness to a hit-and-run committed by someone else (this happened to me), then you can feel more comfortable offering evidence to help the police do their job, catching bad guys. But you have be 100% certain that you are not a  suspect and will not become one because of anything you say. If the situation seems even potentially coercive, remember: silence is golden. Prison bars are steel.

STOP AND IDENTIFY IN ILLINOIS

Since we are talking about coercive situations, an important point. Illinois, like many states, has a “stop and identify” law, 725 ILCS 5/105-14. If a police officer has “reasonable suspicion,” an articulable basis, not just a hunch, but not probable cause, s/he may detain you in the vicinity and demand your name and address and an explanation of your actions. Unless you are doing something that requires identification, such as driving a car, the officer cannot demand ID, because this is the land of the free.

These encounters do not trigger Miranda unless they become coercive, so answer briefly, truthfully, and vaguely. “I’m Justin Schwartz, I live at 0001 W. Devon, Chicago, and I’m shopping/looking for a friend/out for a walk — something true, vague, and innocent. Not, “I’m looking for my drugs/guns.” Don’t say that. Not as a joke, especially not if it’s true.

Don’t lie to the cops. It’s not a crime, as lying to the Feds is a crime, see 18 U.S.C 1001 (False Statements), even when not under oath, but it’s a bad idea. The point is to defuse the situation. The encounter is supposed to brief and more or less right where you’re stopped, or Miranda is triggered. Then see the two simple rules above.

BE POLITE!

A final note. Always be polite and respectful with the police, keep your hands open and away from your body (or clearly visible), and do not make any sudden movements. The police are armed men and women with the authority to kill you with virtual impunity — unless caught on video, and then it’s too late to be any good for you anyway. Most of them won’t do it–there is a lot of paperwork involved, and most of them are reasonably decent individuals. But why take a chance? Politeness and caution never hurt anyone.