The Best Wrong Answers

At Techdirt, Tim Cushing does an excellent job of parsing the FBI’s no-recording-of-interrogations policy.  Tim always does an excellent job at spreading the word from the legal end of the internet to the geek side of life.  But what gives rise to this post isn’t Tim’s post, but the comments thereto.

In the past, I’ve explained the  proper response to police interrogation.  I’ve repeated the explanation in subsequent posts. Other lawyers have written similar things, though perhaps the  nuance is lost in translation. And yet, the message not only isn’t getting through, but non-lawyers are “instructing” other non-lawyers how to deal with police interrogations in a way that will likely fail miserably.

Why? Why do you not pay attention? Why must you, clueless non-lawyer who reads crap in the interwebz of varying quality, inform others about how to deal with things when you have no idea what you’re talking about?  Why do you listen to the other idiot who has no clue what he’s talking about? Why?

What am I talking about? This comment and this one.  And then there are the plethora of “just shut up” comments. Actually, they really aren’t so terrible, and there are some very good comments in there, but I’m exaggerating the problem in order to justify my repeating the stuff I’ve written in the past for those who weren’t around then and keep offering advice that is, how do I say this kindly, is less than precise.

The problem is that silence (as in, just shut up), is not an invocation of either the right to remain silent or the right to counsel. Silence is an invitation for the police to persist in the interrogation until, maybe, the silence ends.  Unfortunately, most people can’t “just shut up.”  Even if they can, it’s only for a brief period, after which the words of police interrogators cajoling them to help themselves, just clear a few things up so you can go home, whatever point in the Reid Technique they’re at, overcomes the three word warning and out comes the confession.

It’s not that just shut up isn’t good advice, but that it’s inadequate and takes your eye off the ball.

At the time police take you into custody, you have at least two (there are more, but that’s for another day) constitutional rights at risk.  You have the right to remain silent under the 5th Amendment, and the right to counsel under the 6th Amendment. These are separate rights, even though they are put at risk at the same time.

In order to invoke your constitutional rights, you are required to do something: invoke your rights.  What does that mean? You must make a clear and unequivocal statement to the police that you are exercising your rights under the Constitution.

Note that silence is no longer an invocation of rights, following the Supreme Court’s decision in Berghuis v. Thompkins.  There are so many things silence could mean, aside from, well, silence, and so just shutting up isn’t good enough anymore.  Besides, as the Berghuis case (and about a million others) have shown, even a fellow inclined to just shut up may eventually crack under pressure and cease his just shutting up. It happens. A lot.

Now for another nuanced detail that seems to confuse so many people. The police do not have to read you Miranda rights for you to be lawfully arrested, but you already know that. What may not be as clear is that the police do not have to read you Miranda rights until you are subject to a custodial interrogation. In other words, it doesn’t kick in until you are in custody. 

What does that mean? Custody means that a reasonable person would understand that he is not free to leave. To the Supreme Court, a reasonable person is one who has no fear of saying to police officers, “Gentlemen, as much as I enjoy your company and pleasant conversation, I no longer feel like engaging with you, so I will now be on my way,” without concern that they will thereupon be beaten, tased, tackled, kicked in the head a few times until their orbital socket is fractured beyond repair, or shot. I have yet to meet this reasonable person.

Nonetheless, you have these rights even if the police have failed to tell you so, whether because they will claim you weren’t yet in custody or they simply don’t want to. By realizing this up front, you will be empowered to assert your rights regardless of whether the police give you Miranda warnings. They are yours to use or lose.

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words that leave your mouth, that you are invoking your rights.  This is how you do so:


I do not want to answer questions.

I want to speak with my lawyer.
This is how you do not assert your rights:


Do I have to answer questions?

Do I need a lawyer?
Or this:


I don’t think I should answer your questions.

I think I should speak with a lawyer first.
Or even this:


<crickets>
But it’s not over yet. Oh no. Even if you have effectively invoked your right to remain silent, you can blow it when, feeling confident and bold in having outsmarted the police by speaking the magic words, you then choose to vomit words in the absence of provoking questions.  In other words, if after the invocation of your right to remain silent, you voluntarily make statements without having been provoked into doing so by the police, you have in essence un-invoked your rights and your statements can be used against you.

One last tip is that it is wise to repeat the invocation of your constitutional rights each time a new officer comes to say “hi,” so that everyone is aware of your invocation and no one can later claim that you offered up the statements freely. Yes, the police may think you’re a repetitive bore, but they weren’t going to invite you to a party anyway, so no loss.

And if all of this is way too hard to remember, or fear overcomes your sound discretion when the time comes to utter the magic words, then the fall back position is just shut up. No, it’s not the same as an invocation of rights. No, it is not the right way to handle the situation. But it beats the hell out of spewing your guts out and hanging yourself.

13 comments on “The Best Wrong Answers

  1. A Voice of Sanity

    Has anyone raised the objection to the statements of the accused being used against him that while it is a criminal offense to lie to the police or FBI they will cheerfully lie to you, repeatedly and excessively? And has it ever worked?

    Will Miranda ever be ‘updated’ to include this warning?

    Will school pupils ever be taught about the Reid ‘technique’?

    (Just finished reading “The Confession” by Grisham).

  2. Jesse

    From what I have read, I surmise that invoking one’s rights (or just staying silent) is even more important when talking to the feds. This is because even if they cannot convince a jury that you are guilty of some actual crime, they will examine your statements to find some kind of incongruity and then charge you with lying to their agents all by itself.

  3. SHG

    Yes and no. The feds can charge a person who lies to a federal agent with a violation of 18 USC 1001, which is a crime in itself.  But the same threat of one’s statements being used against them is just as much a concern in state court as in federal court. So for practical purposes, invoke your rights and don’t draw any distinctions. It’s important no matter whose cuffs are on you.

  4. SHG

    Object to the law the way it exists? Sure. Object away. Spend the next 20 years objecting. I object! Except it’s the law, that lying to a federal agent is a crime, and that agents lying to citizens is a necessary and legitimate tool of law enforcement.

    As for school pupils being taught about the Reid Technique, most people don’t know the three branches of government.  But there’s always the internet.

  5. C. N. Nevets

    Do you know a good distillation of the Berghuis decision? I understand where it ends up, and I did click through to the decision itself and will be attempting to parse the logic with my non-law school brain, but a handy summary of the logic would be helpful. From a purely layman’s perspective, the phrasing of the amendment per se always seemed to suggest that silence was sufficient to invoke. I see now that it’s not, but am not quite grasping why.

  6. SHG

    Short answer: Silence is ambiguous, rather than a clear and unequivocal invocation. Crazy, right?

  7. ExCop-LawStudent

    Even if they know about the Reid Technique, 9 times out of 10 it still works.

    I interrogated a female lawyer who should have known better. We even talked about Reid prior to getting into the meat of of the matter. She was read her Miranda, waived them, and then went on to tell me everything I wanted to know, on tape.

    We ended up not prosecuting in the interest of justice, but it would have been a slam dunk if we had pursued it.

    The key, from the police side, is to first be a good actor (i.e., convince them you are on their side when that is the farthest thing from the truth), and second, be quiet. People hate silence and will fill it up. You just have to read their body language and it will tell you which way to go, what bothers them, etc.

    This works even if they have properly invoked their rights (which most don’t). If I’m not asking questions and they talk, I can use anything they say. I would just keep the tape rolling and my mouth shut. If they ask me anything, I advise them that I can’t ask them any questions and shut up again. Within a couple of minutes, they almost always start talking again.

  8. SHG

    And that’s why the “just shut up” is a fine thing to say, but doesn’t work. People just can’t do it.

    And to reiterate what I wrote in the post, even after an invocation of rights, voluntary statements in the absence of interrogation are admissible

  9. Frank

    Hey, any link that mentions Christopher Porco is a good one. I missed being an EMT on that scene by a matter of minutes.

  10. Patrick H

    I think the problem with the whole right to silence area is its tied into the 5th amendment, when it should properly be tied into the 9th amendment.

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