What it means to “lawyer up” and what exactly are you supposed to tell the police?

The case, Miranda v. Arizona, is easily one of the most recognized U.S. Supreme Court decision—holding its own with Roe v. Wade, Brown v. Board of Education and Marbury v. Madison.  It would be a difficult to find any Police/Detective movie or television show in the past 50 years that didn’t include language from Chief Justice Warren’s decision.  Even kids playing cops and robbers might be heard uttering the phrase, “you have the right to remain silent.”  Maybe not quite as recognizable, but still well entrenched in the cop show colloquy is the phrase lawyer up.

The cliché tough cops—fictional and nonfictional—speak of lawyering up like some hideous weapon bad guys use to thwart justice and rip apart the fabric of civilized society.  It is talked about with such distain, one would think it was illegal—quite the contrary.       

Lawyering up is shorthand for invoking your 6th amendment right to counsel and it is well entrenched in Supreme Court precedent, starting with Miranda, and expounded upon in cases like Edwards v. Arizona.  James Madison may be due some royalties—being that he is the author of the Sixth Amendment, and the right to and Attorney.

Asking for a lawyer is by no means illegal or immoral.  But the T.V. Cops are right about one thing—it is a powerful weapon.  Among all the Miranda rights, invoking the right to counsel is the most effective way to stop the police from harassing and badgering a person into a confession.  The rule in Edwards is uniquely strong and blunt, “Miranda’s rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation must cease.”  101 S.Ct. 1880, 1886 (1981).  Effectively, once you ask for a lawyer, the cops must stop questioning you, unless you decide to restart the conversation.  There are, however, some caveats to this rule. 

After you ask for your lawyer…keep your mouth shut

The Edwards Court went on to say, “although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation…the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.  We further hold that an accuse…, having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him.” Edwards v. Arizona, 451 U.S. 477, 487 (1981).

The key language in that passage from Edwards is, “further police-initiated custodial interrogation.”  Once a person has lawyered up, the job of staying lawyered up is on him.  The police can’t continue to question him—but if the suspect restarts the conversation with the police himself, the cops are free to reinitiate the interrogation.  A suspect in a burglary can’t say I want a lawyer, shut down the interrogation and then start talking about breaking into cars, expecting that nothing he says will be used against him.  The protection is only from the police continuing  to badger or further interrogate him without his lawyer present.

It doesn’t mean you are going home

Be prepared for the police to try and make it worth-your-while to talk.  Once the request for a lawyer is made, the police may say, “Ok then—we’ll get you a lawyer but you are staying here tonight.”  They don’t have to let you go.  If they have probable cause to arrest you, they will.  Even if they don’t, they can hold you for a reasonable time before bringing you before a judge, or releasing you.  Their hope is that you will be so afraid of staying a night or two in jail that you will restart the interrogation yourself without a lawyer.  Remember, the goal is not to avoid the one or two nights in jail—it is to avoid the one, two or twenty years in prison.  Police know that once your lawyer is involved, things are much, much more difficult for them.  They are going to try anything within the law to keep you away from a lawyer. 

Be blunt.  The police don’t have to read your mind.

Don’t equivocate.  Your request for counsel must be clear and unambiguous.  You must specifically say, “I want a lawyer.” This would seem obvious…but you’d be surprised.  From outside the locked door of a police interrogation room, a person may assume they’d have no problem asserting their constitutional rights to the police—but most people have never been interrogated before.  And the police are very good at what they do.  The intimidation factor is great.  The police use intimidation, false empathy, promises of leniency, and flat out lies (which is completely legal) to get you to talk.  Most people in that situation—even those who have been through it before—find themselves wanting to tell the police what they want to hear.  And they feel guilty trying to stop the interrogation—even when it is in their best interest.

The invocation of counsel usually is vague and non-specific.  Its starts out as a question, “should I have a lawyer?”  Or they say, “I think it would be better if I talked with someone, maybe an attorney.”  The police then ask, “are you saying you want a lawyer?  We just were trying to get your story so we could figure out if there is anything to the claims, but if you want us to stop…”  The person invariably wants to cooperate.  Individuals frequently ask the cops, “do you think I need a lawyer?”  What do you think the response is?

            The request must be unambiguous.  Not a question.  The standard is an objective one.  The Court will look to see if the statement was one that could “reasonably be construed to be an expression of a desire for the assistance of an attorney.” McNeil v. Wisconsin, 501 U.S., at 178, 111 S.Ct., at 2209.  Questions don’t cut it.

A violation by the Police doesn’t automatically mean you win your case.

This is true with any Miranda violation.  People mistaken think that if the police violate their rights under Miranda the case goes away—not true. Best case scenario, the only thing that goes away is the confession.  Sometimes the police will question or talk to a suspect without reading them their rights—it’s rare but it does happen.  Usually that means they have enough evidence without your confession.  While a statement admitting guilt is a powerful piece of evidence for the police and State’s Attorney, the absence of a confession doesn’t mean the State can’t prove their case.  That being said, don’t make their life easier by admitting culpability.  The best advice is to say nothing and talk to a lawyer.  Even if you think you are not confessing, you have no idea in what context your statements are being interpreted or perceived.  Every omitted fact or misspeak—no matter how genuine or benign—will be perceived as an inconsistency later at trial.

ALWAYS lawyer up! No exceptions!

I have no qualms saying that the invocation of counsel is a powerful tool, that every single person who finds themselves being interrogated should use, without exception.  Knock on wood you never find yourself in that positon, but if you do, close your eyes, take a deep breath and say, “I want a lawyer.”  Then say nothing.  Don’t worry if the cops get angry—that always means you are doing something to help yourself and not them.

 

John P. Casey 

Attorney John Casey has been practicing criminal defense for over twenty years.  He was recognized by the National Association of Criminal Defense Attorneys with the 2016 Nationally Ranked tope Ten Attorney Award.  He has argued and won many Motions to Suppress Confessions at the trial and appellate level.  If you have any question about a pending criminal matter--or appeal--contact John at jcasey@caseynelsonlaw.com, or call 630-290-4252.

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