What to Watch Out For, When You Remain Silent and Ask to See a Lawyer

When you’re in custody, once you say I’m going to remain silent. I would like to see a lawyer, the police are not allowed to question you—but you actually have to remain silent. You can’t talk to the police about anything, not the weather or sports or movies. You can’t ask simple questions, like “When do I get my phone call?” 1 Don’t make small talk. Don’t make jokes. Silent really means silent.

The only exception to remaining silent is giving your name and address. You will have to provide that information if you want to be “released on promise to appear” (the promise to appear is a document, usually a ticket, telling you when to come to court—Sample Promises to Appear). Do not give any other information, such as your social security number, the names of family members, employment data, etc. This is important, because one of the most effective police interrogation techniques is to relax the subject by posing safe, normal questions—the kind that come up on countless forms and applications. The cop will seem bored and business-like, just “getting through all the paperwork.” An experienced officer will then move very gradually into questions about the people and incident under investigation, without any pause or change of tone. So don’t let them get you on a roll, obediently answering “safe questions.” Instead, mentally rehearse exactly what information you’re going to give: you’re going to say only your name and address, nothing else. If you don’t set that limit ahead of time, you’ll find yourself answering all sorts of questions, some of which are bound to hurt.

If you’ve been arrested and you break your silence to give your name and address, immediately follow-up by repeating the Magic Words: I’m going to remain silent. I would like to see a lawyer. This restores your constitutional protection, making it illegal for the police to question you further.

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There are two common misconceptions when it comes to remaining silent:

Misconception 1: Many people assume that if they say I’m going to remain silent, I would like to see a lawyer or “I take the fifth,” then nothing they say afterward can be used against them. That’s a ghastly mistake. Saying the Magic Words merely keeps the police from questioning you after arrest, and only as long as you stay silent. If you break the silence by saying anything at all—whether it’s a statement or a question—your words can be used against you and you’ll have destroyed the effect of the Magic Words. You’ll have to say them again to be protected from questioning.

Misconception 2: Sometimes people get confused and think that informal conversation is okay, as long they don’t “make a statement” or “give a confession.” That’s dangerously wrong. Anything you say—anything at all—can be used against you, even questions, casual remarks, and jokes. It doesn’t matter whether your words are written down or spoken, or whether you’re in custody or free to go. And your statements can easily be twisted, taken out of context or misquoted. It’s impossible to predict all the things that could go wrong once you start talking. So the only safe course is to remain silent. Here are some examples, based on real cases, of people who talked their way into prison:

Example: Sue and Sally were arrested together in a drug case. At the police station, they were kept in separate holding cells, out of earshot of each other. The detective investigating the case questioned them individually about the crime. Neither of them answered these questions. However, Sue chatted with the detective, just making small talk—she told him where she went for dinner the night before, where she was planning to go for vacation, etc. Later on, the detective went to Sally and fooled her into thinking that Sue snitched on her. Sally wouldn’t have believed the detective, except that he mixed in the trivial information Sue had given him earlier, and those tidbits of truth made his story very convincing. Once Sally was persuaded that Sue had told on her, Sally angrily insisted it was all Sue’s doing. The detective then took Sally’s statements to Sue, who was outraged, and promptly ratted on Sally. So in the end, both suspects were suckered into snitching on each other.2

When law enforcement officers are questioning you, it’s completely legal for them to lie about the evidence and even create false documents in order to fool you into talking! Since you cannot be sure that the officers you’re dealing with are telling the truth, the only safe thing to do is to stay silent. As the saying goes, “a fish won’t get caught if it keeps its mouth shut.” 3

Types of Encounters With Law Enforcement Agents

There are three levels of police-initiated encounters.  The second two—which are more serious—require a certain level of proof before the police can undertake them.


Level of Proof

(1) conversation none
(2) detention reasonable suspicion
(3) arrest probable cause

1.  You should be allowed to make a phone call within a few hours of arrest, usually soon after you arrive at the police station or jail.  Normally, you're put in a holding cell that has a telephone in it, though these phones are often rigged so that you can only make collect calls.  The authorities are allowed to listen in on your calls from jail, so you must not talk about the incident for which you were arrested or any other illegal activities in which you might have been involved.  It's best not even to talk about other people, because they might be investigated or questioned.  The importnat thing to communicate is that your friends or relatives should get you a lawyer and/or a bail bondsman.  If you haven't been given access to a telephone, say: "I would like to call a lawyer."  This has the same legal effect as saying, "I would like to see a lawyer," so it doesn't wipe out the protection you get from saying the Magic Words.

2.  For another example of this technique, see Rat Jacket.

3.  Attorneys have been giving this particular piece of advice for hundreds of years.  Back in 1614, an English lawyer named John Hoskyns (who was, at the time, locked up in the Tower of London for being disruptive) wrote to his young son:

                Sweet Benjamin, since thou art young,
                And hast not yet the use of tongue,           
                Make it thy slave, while thou art free;
                Imprison it, lest it do thee.

The Columbia World of Quotations, s.v., "John Hoskyns," http://bartleby.com/.

Story: Rat Jacket

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See other Miranda Rights related pages:

©2007 Katya Komisaruk

Republished by permission from the Just Cause Law Collective

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