# Asking for a lawyer during an interrogation **URL:** \ **Category:** Factual Questions\ **Created:** [January 23, 2009, 5:16pm UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664 "2009-01-23T17:16:49Z")\ **Posts on this page:** 12\ **Page:** 2
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 27, 2009, 1:57am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/21 "2009-01-27T01:57:53Z")
[QUOTE=Federal Rule of Evidence 801] d) Statements which are not hearsay. A statement is not hearsay if– (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or (2)Admission by party-opponent. The statement is offered against a party and is **(A) the party’s own statement, in either an individual or a representative capacity or** (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. [/QUOTE] [http://www.law.cornell.edu/rules/fre/rules.htm#Rule801](http://www.law.cornell.edu/rules/fre/rules.htm#Rule801) Admission of guilt may mean admission against interest, which applies only when the declarant is unavailable, but applies to non-parties. [http://www.law.cornell.edu/rules/fre/rules.htm#Rule804](http://www.law.cornell.edu/rules/fre/rules.htm#Rule804) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 27, 2009, 2:16am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/22 "2009-01-27T02:16:55Z")
> [@iamthewalrus\_3](#): > > What? > > One of us is confused about what “hearsay” means. I’m pretty sure it’s you. > > Person A saying “Person B told me he did X” is not evidence that Person B did X. It’s _hearsay_. Actually, it’s defined as non-hearsay in most jurisdictions, if Person B is a party to the case. [QUOTE=Federal Rule of Evidence 801] A statement is not hearsay if– * * * (2)Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or [/QUOTE] [http://www.law.cornell.edu/rules/fre/rules.htm#Rule801](http://www.law.cornell.edu/rules/fre/rules.htm#Rule801) That’s why the Miranda warnings include the statement that: > [@](#): > > anything he says can be used against him in a court of law [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 27, 2009, 2:40am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/23 "2009-01-27T02:40:35Z")
> [@racer72](#): > > Not true. Anyone can use a public defender, those that can afford to pay will be required to pay. One of the first things a PD does when meeting a potential client is have them fill out an income and asset declaration, the amount you pay will depend on the numbers on the form. My SIL works for the PD’s office in the largest county in the state of Washington. If that’s true in King County, they ought to change their website: > [@](#): > > Aren’t public defenders supposed to be free? > Public defenders are free if you are determined to be indigent (please see our eligiblity page, Who We Serve, to find out if you qualify). **If you have enough money that you are not considered indigent, but not enough to afford your own attorney, you are considered “able to contribute.”** In this case, the OPD screener will have you sign a promissory note to help defray the cost of the attorney, which can be paid back over a period of months. In either case, under county law you still must pay the $25 processing fee. [http://www.kingcounty.gov/courts/OPD/FAQs.aspx#98C5429F102C4A3ABB6A231B6D4C99EE](http://www.kingcounty.gov/courts/OPD/FAQs.aspx#98C5429F102C4A3ABB6A231B6D4C99EE) Even if the King County OPD website missstates it’s policy, not every appointed counsel system offers appointed lawyers to those who can afford to hire one. For example, > [@](#): > > If the court, based on the information provided, determines that the person is not indigent, the court shall order the public defender or private attorney to discontinue representation and revoke the provision of any other authorized due process services. [http://www.circuit8.org/indigent/Indigent%20Process/Chapter27.52.pdf](http://www.circuit8.org/indigent/Indigent%20Process/Chapter27.52.pdf) and > [@](#): > > Q. Who qualifies for the Public Defender? > > A. South Carolina Code Section 17-3-10 states that a Public Defender will be appointed when “it is determined that the person is financially unable to retain counsel.” To qualify for the Public Defender, you must first go through a screening process where you complete a financial affidavit. If you qualify, a Public Defender will be appointed to represent you. [http://www.sccid.sc.gov/indigent-defense-faq.cfm](http://www.sccid.sc.gov/indigent-defense-faq.cfm) Gideon v. Wainwright There is a lot of variation appointed counsel systems, and some of the variations are more amenable to sliding scale fee arrangements than others. [http://www.legis.nd.gov/assembly/58-2003/docs/pdf/59032.pdf](http://www.legis.nd.gov/assembly/58-2003/docs/pdf/59032.pdf) ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [January 27, 2009, 4:03am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/24 "2009-01-27T04:03:01Z")
> [@Gfactor](#): > > Actually, it’s defined as non-hearsay in most jurisdictions, if Person B is a party to the case. I guess I was the one who didn’t understand. Thanks for the correction. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 27, 2009, 12:27pm UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/25 "2009-01-27T12:27:32Z")
> [@DrDeth](#): > > Umm, not nessesarily, Bricker, I think you read the OP wrong, or maybe I am reading your answer wrong. He asked “…\*somebody is taken by the police to be questioned…”. \*You may also ask “Am I free to go?” They may not have enough evidence against you to hold you. > > To answer the Op: my freind, a Judge, and the ACLU both say the same thing- when they read you your rights, **STFU** , and say only two things: > > 1. I want to speak to my/an attorney. > 2. Am I free to go? Which is why I said, “If you’ve been arrested..” ---
**Author:** ![BrassyPhrase](https://avatars.discourse-cdn.com/v4/letter/b/ea666f/32.png) [@BrassyPhrase](https://boards.straightdope.com/u/BrassyPhrase)\ **Post date:** [January 28, 2009, 5:19am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/26 "2009-01-28T05:19:06Z")
> [@Telcontar](#): > > Concur. The psych in law people agree that an interrogation room is a very bad place for a suspect, innocent or guilty, to be. I have to send a link to this link[http://www.youtube.com/watch?v=tyfN3dUluAY](http://www.youtube.com/watch?v=tyfN3dUluAY) It’s from _Homicide: Life on the Street_ based on David Simon’s non-fiction **Homicide: A Year on the Killing Streets**. Well acted, it’s taken nearly verbatim from Simon’s riffing on what the homicide detectives have told him. If anyone has missed either of those, please check them out. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [January 28, 2009, 5:41am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/27 "2009-01-28T05:41:08Z")
> [@iamthewalrus\_3](#): > > I guess I was the one who didn’t understand. Thanks for the correction. Well, you were half right. I mean, in that specific situation (B is the defendant and A testifies that B said X), the statement _would_ be excluded from the definition of hearsay, but the quote you were responding to was > [@](#): > > Its not hearsay if he is the one who repeats it, it was said to him. which you were correct in thinking was an inaccurate statement. The fact that the person testifying is the person to whom an out-of-court statement was directed does not make the evidence non-hearsay. What makes the statement above non-hearsay, like **Gfactor** explained, is the fact that the person whom the statement is offered against is a party to the case, and only that fact – otherwise that scenario definitely fits the traditional hearsay definition. In other words, A testifying that B said X totally is hearsay if C is the one on trial, even though A is the one who heard the statement. I can’t decide if this is too fine a point to bother making. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [January 28, 2009, 6:47am UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/28 "2009-01-28T06:47:58Z")
Oh, let’s get technical, since you’re asking. Hearsay is “an out of court statement offered to prove the truth of the matter asserted,” and it is excluded unless it falls into one of several exceptions (one of which we have seen above, the admission against interest). So, if I (well, not me, I’ve never done litigation, but I know the rules because I’m a geek that way) put Joe Blow on the stand to say, “Sarah Palin told me that Joe the Plumber is a total tool,” it is not admissible to prove that JtP is a total tool (a fact suitable for judicial notice, anyway). However, it is admissible to prove that Sarah Palin was conscious and capable of coherent speech at the time. See the difference? (Incidentally, Jimmy Chitwood, I disagree with your statement that A’s testimony is not hearsay. It _is_ hearsay, but it is admissible anyway, because it falls into a hearsay exception.) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 28, 2009, 1:42pm UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/29 "2009-01-28T13:42:14Z")
It sounds as if the definition of “hearsay” is itself fluid. I certainly bow to **Gfactor’s** position that in the US, statements to a jail-house snitch wouldn’t be considered hearsay, but in Canada, it would. Up here, the definition of hearsay is kept analytically distinct from the exceptions to the hearsay rule. An admission against interest and a confession are both hearsay; the question in a Canadian court is whether the statements are admissible under any of the exceptions to the hearsay rule. An admission against interest is one such exception; a confession is a specialised sub-set of an admission against interest, but still a form of hearsay. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 28, 2009, 2:47pm UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/30 "2009-01-28T14:47:14Z")
> [@Northern\_Piper](#): > > It sounds as if the definition of “hearsay” is itself fluid. I certainly bow to **Gfactor’s** position that in the US, statements to a jail-house snitch wouldn’t be considered hearsay, but in Canada, it would. Right. It just so happens that the drafters of the Federal Rules of Evidence decided to set up a hearsay rule with a troica of carve outs: 1. Statements that meet the definition of hearsay, but are defined as non-hearsay. 2. Statements that meet the definition of hearsay, but are excepted from the rule excluding hearsay no matter what; and 3. Statements that meet the definition of hearsay, but are excepted only if the declarant is unavailable. Here is the definition of hearsay: “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [http://www.law.cornell.edu/rules/fre/rules.htm#Rule801](http://www.law.cornell.edu/rules/fre/rules.htm#Rule801) 801(d) excepts two sorts of statements from this general definition. In other words, they’d count as hearsay if rule (d) didn’t say they weren’t hearsay: (1) Prior statement by witness (2)Admission by party-opponent (while the name of the rule says “admission” it really applies to \*statements \*by parties, agents, and co-conspirators. Also, the definition of unavalability can be counterintuitive: > [@](#): > > “Unavailability as a witness” includes situations in which the declarant– > > (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or > > (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or > > (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or > > (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or > > (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means. > > A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. FRE 804 Some states have copied the Federal Rules of Evidence, others have not. E.g., [http://www.capitol.hawaii.gov/hrscurrent/Vol13\_Ch0601-0676/HRS0626/HRS\_0626-0001-0803.htm](http://www.capitol.hawaii.gov/hrscurrent/Vol13_Ch0601-0676/HRS0626/HRS_0626-0001-0803.htm) (party admission is a hearsay exception) ---
**Author:** ![bobot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bobot/32/21622_2.png) [@bobot](https://boards.straightdope.com/u/bobot)\ **Post date:** [January 28, 2009, 7:04pm UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/31 "2009-01-28T19:04:43Z")
This dosen’t answer your question, but it is well worth pointing out. If a cop ever says to you: “You have the right to remain silent.”, ZIP IT! Even if you’re innocent, ZIP IT! Say only: “I would like to speak with an attorney.” Once you start talking, there are a hundred different ways you can misspeak. When the cops say “ANYTHING you say can and WILL be used against you…” they mean it. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [January 28, 2009, 10:23pm UTC](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664/32 "2009-01-28T22:23:03Z")
> [@ENugent](#): > > (Incidentally, Jimmy Chitwood, I disagree with your statement that A’s testimony is not hearsay. It _is_ hearsay, but it is admissible anyway, because it falls into a hearsay exception.) Like **Gfactor** was saying, an admission by a party opponent falls under 801(d), which isn’t technically an **exception** in that it’s hearsay, but it’s OK, but rather it is completely exempted from being hearsay at all. Technically, what 801(d) says is that that statement specifically _is not_ hearsay. Then 803 has the actual exceptions. I’m not saying it’s especially important that some uses are “exempted” and thus aren’t hearsay at all, while some uses are hearsay, but are exceptions from the general rule that hearsay can’t be admitted, but the rules do contain that distinction. There’s hearsay, then there’s things that specifically aren’t hearsay although you might think they are, then there are things which are hearsay but get special exceptions to the general rule. [Previous page](https://boards.straightdope.com/t/asking-for-a-lawyer-during-an-interrogation/482664.md?page=1)