There is a space on my potential client interview form that prompts me to ask my potential clients if they gave any statements to the police, whether on the scene where they’re arrested or back at the station.
I am considering removing it, because it is useless.
Invariably, when I first ask them this questions, 9/10 clients say “No, man, I know my rights”. Great! I love when my clients know their rights. It makes my job a lot easier.
Then I start talking with my clients about what happened when they got arrested, and that “No” becomes “well, I guess I said it wasn’t me”. Or “I told them I didn’t have any drugs on me because I wasn’t a dealer, I was a user”. Or, my favorite “Why are you arresting me? I didn’t shoot anyone!”. Or “I just wrote down everything that happened, and I apologized for taking all the money”.
Folks, I have four words for you: “Shut. The. Hell. Up.”
You have an absolute right NOT to talk to the police, and you SHOULDN’T. Because they ROUTINELY LIE as part of their jobs.
- Police tell you they “just want to talk”. LIE.
- Officer Friendly asks “Why don’t you come down to the station and give a statement and we’ll straighten things out?” LIE. (We call this a “confession” in legal parlance).
- Trooper DUI pulls you over and says “Just tell me whether you’ve been drinking tonight and I’ll let you go”. LIE.
- “Your buddy Jimmy is in the other room spilling his guts out pinning it all on you. Why don’t you just confess and you can go home?” LIE.
Police officers sometimes get mad when defense lawyers call these lies. They prefer to call it an “investigative technique”. Whatever. (I could say I was as tall and handsome as Matthew McConaughey. I guess the police would call that an “investigative technique” too).
If they are interested in talking to you, I can assure you it’s not because of your charming personality.
Moreover, anything that you say to police can and will be used against you.
But What About My Miranda Warnings?
So when I finally explain to my client that yes, saying “No, I didn’t sell drugs to that guy” is indeed a statement to police, I usually get something like this:
“Yeah, but Mr Leo, they didn’t read me my rights! So you can get all that suppressed, right?”
Wrong. I blame TV for this. (By the way folks, TV rots your brain.)
We’ve all seen the ridiculous police procedurals where the cops are all good and they always get the right bad guys. Invariably, as the handsome yet rugged squared-jawed officer cuffs his perp, he says something like: “Mr. Bad Guy, you’re under arrest for the murder of Suzie Jones. You have the right to remain silent. Anything you say can and will be used against you in a court of law…”
Yadda yadda, we all know Miranda the warnings. (And if you don’t shame on you. Learn them).
Because of police procedurals, I guess that some people assume that this is just how arrests happen in real life.
Wrong. (Remember that TV is fiction. Go read a book.)
In many cases, police slap on the cuffs, throw you in the back of the Paddy wagon (I’m allowed to say this because I’m Irish), then cart you into a holding cell until you can get arraigned. Unlike on TV, police only have to read your Miranda rights if you are in custody and they are asking you questions. And just like police have a funny definition of “lie”, they have a funny definition of “in custody” too.
But anything you say to the police on the street, or in the back of the police car, or while in the cell is all fair game and can come in against your under any number of rules under the Pennsylvania Rules of Evidence. So in light of this, it might seem best that you actually follow the ideas expressed in the Miranda warnings and just, you know, remain silent.
Wrong. (The law is complicated. That’s why I have a job).
In 2013, the United States Supreme Court decided that if you remain silent, that doesn’t necessarily mean that you meant to “remain silent”.
The law doesn’t always make sense, even when it comes from the Supreme Court.
When Remaining Silent Isn’t
In 2013, the United States Supreme Court heard the case Salinas v. Texas (for you law nerds thats 570 U.S. ______ (2013)). I am not going to run over the facts of the case with you, because many people smarter and I am have already written scores about it. Also you might be a law student and I am not going to do your homework for you.
But the most important— and confusing—part of that holding is this:
In order to actually invoke your right to remain silent, you must say “I invoke my right to remain silent”. Otherwise your silence may be held against you.
The Supreme Court lives in a bizarro world, yes. But this means that you can’t just remain silent in the presence of police questioning.
What Should I Do if I Am Questioned by Law Enforcement?
In many cases, I tell my clients to say three sentences when they are facing questioning by law enforcement:
- I don’t want to answer your questions;
- I want to talk to my lawyer;
- His name is Leo Mulvihill (Note: if you are not my client, you may wish to use your own lawyer’s name, or things might get confusing).*
Three sentences. Then Shut. Your. Mouth.
Stop snitching on yourself. You have no obligation to speak to law enforcement, ever. You ought not speak with law enforcement unaccompanied by an attorney. Local police, State police, FBI—it doesn’t matter. It will not end well for you, not matter how smooth-talking you think you are, or how many times your quick wit has gotten you out of trouble before. Chances are, police already know the answers to the questions they’re asking you. In the law, words are ammunition; don’t arm the police with weapons to harm you.
A Famous Saying to Remember
I first learned a quote when I just started practicing about 4 years ago now. It’s been attributed to Mark Twain, Abraham Lincoln, and other smart guys who are often (incorrectly) given credit for clever sayings. (For what it’s worth, it’s been around much longer than that). Remember this:
It is better to remain silent and be thought a fool than to open one’s mouth and remove all doubt.
with a caveat
Unless dealing with the police, then say that you want to remain silent and unequivocally want to talk with your lawyer.
But is you want to talk, then you might want to remember this one:
Silence is golden. Handcuffs are silver.
Or for those who aren’t a fan of reading: