When you see the lawyer on TV walk into the questioning room at the police station on TV and say “My client is not answering any more questions”… that is just theatrics for television for TV right? In other words, in real life, does a lawyer have any legal power to stop questions from the police that a citizen does not have on their own?
IANAL nor remotely qualified to answer this, but doesn’t everyone in the USA have the right not to self-incriminate?
A suspect may refuse to answer questions at any time, as is her/her right. A lawyer may know lines of questioning that may be used for self-incrimination, and, as a representative of a client, should have the legal authority to call a halt to an interview. If I were a defense attorney, I would want my client to be advised of his/her rights and call to a halt to some lines of questioning, particularly if my client were impaired or otherwise unaware of the consequences of self-incrimination.
I don’t think that it’s just theatrics. My understanding is that defense attorneys would prefer that their clients keep their big mouths shut in almost all cases, independent of what the evidence is.
Robert163, have you seen the video “Don’t Talk To The Police”?
The lawyer didn’t stop the police from asking questions. He said his client was no longer going to answer any questions. The police could, in theory, continue asking the suspect questions but it would be a pointless exercise.
Haha I had a somewhat similar incident when I was in the Army which has it’s own legal system and my first sergeant kept trying to ask me about the alleged incident. I hired a civilian attorney who was a retired JAG officer and he called my first sergeant and told him to stop talking to me about it. Like right after that my FS called me into his office and said “we will talk about this” and I told him "I’m sorry but I can’t do that…(gulp) First sergeant… He left me alone after that.
IANAL, but AFAIK once the arrestee has a lawyer, the police can only interrogate him with the lawyer present. Anything they get out of him outside that situation from then on is inadmissible, and typically so is any physical evidence uncovered as a result of invalid interrogation. The usual scenario is that once the lawyer shows up, the interrogation is over - depending on whether the police have anything to offer. The lawyer presumably won’t let him fall for stupid good-cop-bad-cop tricks, and won’t let him say anything substantial, so interrogation is a waste of time. Hence, “he lawyered up.” I learned this on Law & Order, our source for all thing American Legal.
My question – which I asked several times, and I’m not sure I’ve gotten a really clear answer – is this:
Suppose the person being questions knows that he doesn’t have to talk, and knows that it’s almost never a good idea to talk voluntarily. And so he decides he doesn’t need a lawyer to tell him that. And he just, at his own initiative, refuses to answer any questions. (And suppose he does go so far as to state out loud that he declines to answer any questions.)
Then what happens?
Do the cops just keep badgering him with questions, tag-teaming him for umpteen hours non-stop, depriving him of sleep and food and water, in a refrigerated room without a jacket, etc., until he is too broken down to resist and starts to talk? Do you really need a lawyer, just to protect yourself from that?
I suspect that in most jurisdictions, evidence obtained in that manner would promptly be ruled inadmissible. Not only that, the subsequent complaints would muddy the water so much that the case would probably never get to court.
IANAL. Everything I know about the subject comes from this guide to lawin comic strip form, written by a real lawyer. I’ve read the sections on 5th amendment and Miranda.
The 5th amendment doesn’t automatically apply. You have to specifically invoke it. Sitting in silence when questioned can be treatedas evidence of guilt.
If you wish to be silent, get a lawyer to make it clear that you are invoking your rights. Otherwise you could be in trouble.
I am not a lawyer.
I remember a case that went to the US supreme court (I think) that held once a suspect had started to talk to the police, he wasn’t allowed to stop. That is, the court required him to continue answering questions. Hopefully, a lawyer will stop by and clarify what really happened.
Just another reason why I hope I am never questioned by the police. I know I should not answer any questions-but it would be very hard to refuse.
That was over a person appearing before a Senate committee. In that situation, he had to explicitly invoke his Fifth Amendment rights in response to each question.
But read the next page of the comic you linked to. If you’re in police custody, the rule is you’re assumed to have invoked the Fifth Amendment.
That is not correct. Having a lawyer does not trump your free will. In the scenario in the OP there is nothing stopping the suspect from telling his lawyer to go screw. The investigators better have it well documented. if the suspect states that he wants a lawyer or that he won’t speak without one then there will be no further interviews. If a lawyer shows up during an interview you better give him the opportunity to talk to his client. It is still up to the client whether or not he wants to talk.
The process is different from state to state with different case law but generally once he states he doesn’t want to talk the interview is over. You have to specifically waive your right to remain silent prior to the interview. Of course that is with interviews that fit the criteria for Miranda.
Feel free to answer, but the answer you provide is, “I want to speak with my attorney”.
It means “I’m now advising my client not to answer any more questions and telling you that I’m advising him not to at the same time.” Doesn’t mean he can force the client not to talk.
You’ve never seen the other L&O scene where they grab a suspect and he says “I got nothing to say to you”?
You don’t theoretically need a lawyer. Umpteen hours without sleep and food would be illegal (unconstitutional) and most likely anything he said at that point would be tossed as far as criminally prosecuting him (but it could be introduced when he sues the police).
But there’s somewhere short of ‘umpteen’ hours that the cops might want to keep him around and convince or trick him into saying something. Once his lawyer is there, though, the cops are far less likely to try to get away with marginal stuff like that. So practically, having a lawyer probably helps (obviously the more serious the alleged crime is, the more likely a lawyer will be important).
“You have the right to remain silent.”
There are two different rights at issue here. Under the Fifth Amendment, as we all know, a suspect may invoke his right to remain silent in order to avoid incriminating himself. The Fifth Amendment also impliedly grants suspects the right to consult with an attorney during questioning (which is different from the Sixth Amendment right to counsel, which attaches at a later stage).
These two rights are similar in effect - the police can’t ask any more questions - but dissimilar in how they are treated. If you invoke your right to counsel, even in vague terms, all questioning must stop immediately until an attorney is present (or at least until the suspect has had the opportunity to consult with an attorney). The police can ask you to clarify if you are requesting an attorney, but nothing else. Questioning may only resume if the suspect initiates it.
However, the 5A right to silence doesn’t get the same level of respect. The police can stuff you in a cell and come back and ask you later if you are ready to talk (though they can’t withhold food or water or hold you indefinitely, etc.)
No, that is categorically wrong (though arguably consistent with the general view of the law until quite recently). In Berghuis v. Thompkins, 560 U.S. 370 (2010), SCOTUS made it clear that the Fifth Amendment right to silence must be explicitly invoked.
Again, not correct as a federal matter (though perhaps correct under the NJ constitution). The suspect doesn’t have to waive his right to remain silent, he must invoke it if he wants to stay silent. Police interrogation procedures generally require the suspect to explicitly waive his right to silence, but that is a matter of practicality to avoid later claims of constitutional violations rather than a legal requirement.
You never have to talk to the police. You have an absolute right to remain silent. You can assert this right by yourself, or through an attorney.
To answer your question specifically, no… a lawyer does not have “more” power to stop questioning than a citizen has on their own. Because a citizen has an absolute right not to talk.
So, I’m wondering, if the 5th amendment must be explicitly evoked, what’s the difference between
Alex says “I’m invoking my 5th amendment rights, and will not answer any more questions”.
Bob says “I got nothing to say to you”, repeating as necessary.
Carol Person of Interest stares at wall, ignoring police (except to identify himself, and answer whatever other questions he could legally be required to answer).
What could police or prosecutors do to Bob or Carol that they couldn’t do to Alex?
I’m not a lawyer, but that doesn’t seem very reasonable. If the cop says to me, “Nice day, isn’t it?” and I answer, “Yes, it is,” does that mean I’ve started talking to the police and therefore I’m required to then answer any questions he might ask about my alleged involvement in a crime? Where is the line drawn, if there is one?
Well, of course if someone decides to spew their guts despite being told not to by their lawyer… assuming it’s fully voluntary, and not somehow induced by “questions” from the police - then whatever you say can be admitted. One case about this I read was where the police transferring a prisoner (without lawyer) started a conversation in the car and steered it (the conversation) toward the case. This was IIRC ruled inadmissible because the police deliberately were doing surreptitious interrogation not engaging in pleasantries.
Plus, devil-in-details again, the police cannot interrogate you without your lawyer - but IIRC the case discussed about this, the fellow ha a lawyer for crime A, and while he was in jail the police interrogated him about totally unrelated crime B (and he talked, and he gave them details that led to charges). I think the result of the case was that the lawyer was his lawyer for anything that could be linked to the original case he got the lawyer for, and anything related (“We just wanted to ask him about parking tickets a block from the murder scene”), but if the case is totally unrelated the fellow was obliged to state his fifth amendment rights, and demand a lawyer, all over again.