Stephen Gustitis, in his new blawg The Defense Perspective (yes, another Texas lawyer with a blog.  It’s my understanding that they’re getting subsidized for doing this), writes about what to do when you get arrested.

If only every arrest came with instructions.  While it would certainly make the lawyer’s job easier, the impact on the client’s chances of prevailing would be monumental.  We tend to harp on this subject quite a bit.  In fact, I have dedicated a section on my regular website to this very subject.  I’ve written about it before; No doubt I’ll write about it again.

Nothing will harm a defendant more than the words out of his own mouth.  Police are trained, and I mean trained, to get you to talk.  To spew.  To say something.  Anything.  And then to twist the words, insignificant in the client’s mind, into the most damning statement possible.  

For this reason, I keep pounding on the magic words:  I want to speak with my lawyer.  Say it.  Say it to every officer you meet.  Over and over.  Don’t worry about sounding boring or tedious.  The cops are not considering whether you will make an interesting dinner guest.

I’ve told this to clients many times, and it’s almost comical how they just can’t get the idea that there are magic words.  I tell them to repeat it to me (yes, it makes me sound like a school marm), and they respond, “duh, can I talk to a lawyer?”  NO! NO! NO!  I want to speak with my lawyer.  “Do I need a lawyer”  NO! NO! NO!  I want to speak with my lawyer.  You get the point.

The secondary aspect of this assertion of rights is to stop speaking once you’ve managed to say the magic words.  This is where even the best of defendant’s blows the deal.  The magic words come out.  The client, feeling quite proud of himself for having managed to repeat 7 words correctly, takes a deep and satisfying breath.  Then, without prodding, adds some words of his own.

This may be the gestalt need to explain oneself, by adding something like “I’m in enough trouble already and I don’t need to make it worse by talking to you about the crime.”  Or this may be the mistaken idea that by uttering the magic words, they get a free pass on whatever comes next, so they then spew a total confession (or worse yet, some smart-alec version) thinking that the cops can’t use it because they invoked their right to counsel. 

It’s fascinating how the police officer suddenly puts on that very interested, “I’m really your friend” look when a defendant starts talking.  They can sit there and listen to defendant’s all day long.  Defendant’s truly are fascinating people.  But they still won’t invite them over to dinner.

There are no statistics on how many defendants sink themselves with their own mouths when they could have beaten the case if they had just remained silent.   But my very scientific guesstimate is about 30%.  By the way, there are instructions for getting arrested and every cop gets a set.  They’re called the Miranda warnings.  You have the right to remain silent.  Use it.