“Lawyering Up” is the phrase used by cops when someone they want to talk to gets a lawyer. It’s a fascinating thing to watch as the police try to do everything in their power to keep a suspect from lawyering up before they have a chance to get what they want. But the flip side is equally fascinating, because the mere act of lawyering up is absolute proof that the suspect is guilty. The theory is, if a suspect lawyers up, then he must be guilty because innocent people don’t need lawyers.
Ironically, there’s no cop who will talk to anyone when he or she is under suspicion for anything without a lawyer. Of course, this means their guilty as sin of whatever it is they’re accused of doing, but they know the game better the civilians. They know that it’s better to lawyer up and make everyone think they’re guilty than to talk without a lawyer and give the other cops the ability to prove it.
The “right to counsel” doesn’t attach until a formal accusation has been filed against a defendant. That means that the state isn’t going to give you that free lawyer they promised until you show up in court for arraignment, being asked whether you are guilty or not guilty, on the charge. Under the Miranda warnings, you are told that you are entitled to a lawyer and one will be provided to you if you can’t afford one. But they never say when that’s going to happen. The answer is simple, when you get to court, which in New York City means manana. It takes about 24 hours between arrest and arraignment. This will not be the most pleasant 24 hours of your life.
But the individual has the right to have his or her own lawyer step into the middle at any moment. All you need is to have a lawyer, and assert affirmatively that you don’t want to speak with the cops until your lawyer is present. Maybe they will let you make a telephone call, whether to your spouse or your lawyer. Maybe not. Maybe your lawyer will be there to get the call (which is a good reason to call someone you know to be home when you get the chance), and maybe your lawyer will go to the police precinct and smile at the cops who are trying to “get” you. Some people have that sort of relationship with their lawyer. Most don’t.
If nothing else, however, the lawyer can call up the precinct and inform the officer that you are represented and that the officer is not to question you. That’s all it really takes. Once the cops are notified that the defendant is represented by counsel, interrogation must stop. There is always the question of what might have been said before counsel intervened, but that has to get hashed out at a suppression hearing later in the case.
The police hate it when someone lawyers up. It makes their job much harder, since their job is to draw statements out of you when you are at your most vulnerable. No matter what comes out of your mouth, it has the grave potential to hang you. Even if you believe that what you are saying is exculpatory (meaning, shows you’re not guilty), chances are very strong that your statements will fail miserably to convince the cops to let you go and, most importantly, are likely to be your undoing. People in custody tend to have a poor idea of what’s going to get you off, and they commit themselves to a ridiculous defense or destroy their ability to testify later. It’s a catch-22, and there’s no way to take it back later.
The police will apply some major psychological pressure to get you to talk. They are trained to do so. They have plenty of practice. They know exactly what to say to get you to spill your guts. First rule to know: Police are allowed to lie to you to get you to talk. This is what courts like to describe as an “effective law enforcement tool.” Seems wrong? Too bad. That’s the law.
One of the primary things the cops will say to you is, “if you’re not guilty, then what do you have to hide?” Makes perfect sense, doesn’t it? This is also a great move when they want to search your car too, and obtain consent to search when they have no basis to even ask for it.
Another is when you know they’ve got you (so the “not guilty” line isn’t going to fly), they say, “we’ve got you good, so the only way you can help yourself is to work with me. I can help you.” This evokes some sort of Stockholm syndrome reaction, where the defendant aligns himself with his new best friend, the cop, as if this cop truly cares about his wellbeing.
One of my all-time favorites is the copy machine scam. This is where the cops but a piece of paper in a copy machine and tell the defendant it’s a polygraph, a lie detector. They tell the defendant that if he passes the polygraph, they will let him go. They then ask questions, and after each one, they press the button on the copy machine. Out comes the “polygraph’s” finding: “Lying”. Guess what was written on the piece of paper in the copy machine? It’s very imaginative, and these cops should have gotten a medal for coming up with this one.
As has been pointed out here and elsewhere numerous times, there is a correct way to invoke your right to counsel so that they police cannot (lawfully) question you. State clearly and affirmatively that you do not want to answer questions and you want to speak with your attorney. Don’t ask if you need a lawyer. Don’t ask if you should have a lawyer. Say “I want to speak with my attorney.” And then clam up. It’s simple, but suspects get it wrong constantly.
So what should you do when the police tell you, in that sweet and somewhat demure voice, that they just want to ask you a few questions? There is no question whatsoever. Lawyer up.
Ironically, there’s no cop who will talk to anyone when he or she is under suspicion for anything without a lawyer. Of course, this means their guilty as sin of whatever it is they’re accused of doing, but they know the game better the civilians. They know that it’s better to lawyer up and make everyone think they’re guilty than to talk without a lawyer and give the other cops the ability to prove it.
The “right to counsel” doesn’t attach until a formal accusation has been filed against a defendant. That means that the state isn’t going to give you that free lawyer they promised until you show up in court for arraignment, being asked whether you are guilty or not guilty, on the charge. Under the Miranda warnings, you are told that you are entitled to a lawyer and one will be provided to you if you can’t afford one. But they never say when that’s going to happen. The answer is simple, when you get to court, which in New York City means manana. It takes about 24 hours between arrest and arraignment. This will not be the most pleasant 24 hours of your life.
But the individual has the right to have his or her own lawyer step into the middle at any moment. All you need is to have a lawyer, and assert affirmatively that you don’t want to speak with the cops until your lawyer is present. Maybe they will let you make a telephone call, whether to your spouse or your lawyer. Maybe not. Maybe your lawyer will be there to get the call (which is a good reason to call someone you know to be home when you get the chance), and maybe your lawyer will go to the police precinct and smile at the cops who are trying to “get” you. Some people have that sort of relationship with their lawyer. Most don’t.
If nothing else, however, the lawyer can call up the precinct and inform the officer that you are represented and that the officer is not to question you. That’s all it really takes. Once the cops are notified that the defendant is represented by counsel, interrogation must stop. There is always the question of what might have been said before counsel intervened, but that has to get hashed out at a suppression hearing later in the case.
The police hate it when someone lawyers up. It makes their job much harder, since their job is to draw statements out of you when you are at your most vulnerable. No matter what comes out of your mouth, it has the grave potential to hang you. Even if you believe that what you are saying is exculpatory (meaning, shows you’re not guilty), chances are very strong that your statements will fail miserably to convince the cops to let you go and, most importantly, are likely to be your undoing. People in custody tend to have a poor idea of what’s going to get you off, and they commit themselves to a ridiculous defense or destroy their ability to testify later. It’s a catch-22, and there’s no way to take it back later.
The police will apply some major psychological pressure to get you to talk. They are trained to do so. They have plenty of practice. They know exactly what to say to get you to spill your guts. First rule to know: Police are allowed to lie to you to get you to talk. This is what courts like to describe as an “effective law enforcement tool.” Seems wrong? Too bad. That’s the law.
One of the primary things the cops will say to you is, “if you’re not guilty, then what do you have to hide?” Makes perfect sense, doesn’t it? This is also a great move when they want to search your car too, and obtain consent to search when they have no basis to even ask for it.
Another is when you know they’ve got you (so the “not guilty” line isn’t going to fly), they say, “we’ve got you good, so the only way you can help yourself is to work with me. I can help you.” This evokes some sort of Stockholm syndrome reaction, where the defendant aligns himself with his new best friend, the cop, as if this cop truly cares about his wellbeing.
One of my all-time favorites is the copy machine scam. This is where the cops but a piece of paper in a copy machine and tell the defendant it’s a polygraph, a lie detector. They tell the defendant that if he passes the polygraph, they will let him go. They then ask questions, and after each one, they press the button on the copy machine. Out comes the “polygraph’s” finding: “Lying”. Guess what was written on the piece of paper in the copy machine? It’s very imaginative, and these cops should have gotten a medal for coming up with this one.
As has been pointed out here and elsewhere numerous times, there is a correct way to invoke your right to counsel so that they police cannot (lawfully) question you. State clearly and affirmatively that you do not want to answer questions and you want to speak with your attorney. Don’t ask if you need a lawyer. Don’t ask if you should have a lawyer. Say “I want to speak with my attorney.” And then clam up. It’s simple, but suspects get it wrong constantly.
So what should you do when the police tell you, in that sweet and somewhat demure voice, that they just want to ask you a few questions? There is no question whatsoever. Lawyer up.
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If anything at all can be learned from the never ending stream of “Cops” geared reality TV, it is this – keep your mouth shut until your attorney is there to speak for you. period.