By Attorney Corey L. Scott

A nineteen-year old “kid” sat alone in an eight-by-ten foot interrogation room. If you’ve ever watched “Law & Order” you can visualize the room: dimly lit, nothing but a table, a couple of chairs, a door and a two way mirror that allows the police to see in, but suspects can’t see out.

About four days prior, there had been a botched robbery that tragically turned into a murder. The streets were talking and the word on the street was that this “kid” was definitely involved. When his father got wind that his son may have had something to do with this crime, he gave him some fatherly advice, of the good and bad variety. First, the bad advice, he told his son go talk to the police and tell “his side of the story.” Second, the good advice, the last thing he told his son before he left home was to be sure to ask for a lawyer before answering questions.

So there the kid sat, in a place he shouldn’t have been because NOTHING GOOD can come from voluntarily going to tell the police “your side of the story.” But maybe this will end differently, inquiry minds want to know. Let’s find out. So the detectives enter the room and sure enough, before the detectives got a chance to read him his rights the kid does just as father instructed. He tried to request a lawyer by asking, “[t]here wouldn’t be any possible way that I could have a-a lawyer present while we do this?” The detective continued to talk, but the kid persisted and said, “that’s what my dad asked me to ask you guys…uh, give me a lawyer.”

So, it seems to me that the kid asked for a lawyer twice, surely the detectives will stop the interrogation, right? Well, actually wrong, the detectives pressed on with questioning. In fact, they managed to convince the kid that it was a bad idea to get a lawyer involved. They convinced him that his co-defendants (the others involved in the crime), had already confessed but he needed to tell his side of the story. After that, the kid seeing no other way out, shrugged his shoulders and said “let’s talk.” Think you know how this ends, the “kid” having made a confession without the assistance of a lawyer, was convicted of robbery and murder and sentenced to life in prison. On appeal, state appellate courts found that the “kid” failed to properly invoke his right to a lawyer because his statements were ambiguous (not clear enough), so the detectives couldn’t be sure that he was asking for a lawyer. Anybody besides me want to call B.S.?

So let’s talk about the law in this area so that if you ever find yourself on the wrong side of a two-way mirror, in an interrogation room, surrounded by confession thirsty detectives. Here’s how to handle your constitutional business!!

First, we know that the kid was interrogated (questioned) at the police station, surrounded by detectives, why is this important? Well, prior to questioning someone in custody, police are required to give “Miranda warnings,” which most people have heard a million times on t.v., if not, here they are again: 1) you have the right to remain silent; 2) anything you say can be used against you in a court of law; 3) you have the right to talk to a lawyer and to have a lawyer present with you while being questioned; 4) if you cannot afford a lawyer, one will be appointed to you prior to questioning; and 5) you can decide at any time to exercise these rights and not answer any questions or make any statements.

Second, the Miranda warnings contain several precious constitutional rights. The 5th Amendment is your right not be compelled to make any incriminating statement against yourself, this is your right to remain silent. Then the 6th Amendment is your right to the assistance of counsel, so that unlike the “kid,” you don’t have to go into a police interrogation room alone and face off with a gang of detectives armed with tricks and tactics to persuade you to give up rights meant to protect you.

So we know from the facts of this story that the “kid” was entitled to exercise his rights to remain silent and to have an attorney present. We can have rights all day but here is the moral to the story, rights DO NOT assert themselves. So why wasn’t the kid’s request enough to protect him from the detectives? Because he was too concerned about being polite with the police, and in this context—kindness kills and being too polite can send you to prison. To make my point, here are some other phrases, used by real people, that resulted in them being convicted because courts did not find that they made it clear that they intended to exercise their rights: “maybe I should talk to a lawyer,” “I think I want a lawyer,” “Do you think I need a lawyer,” “Could I call my lawyer?”

When being questioned by police, words really matter. The United States Supreme Court has made clear that the right to counsel is a significant event and that once it is exercised clearly, any interrogation must stop until an attorney is present. So instead of being polite like the “kid” or the examples above, how should you exercise your rights? Glad you asked, don’t worry about being polite, or asking permission or getting the opinion of the police or how you’ll sound or come off to cops. Simply say, I want a lawyer. Then stop talking, and if necessary, repeat, I want a lawyer until your request is granted. In other words, say what you mean and mean what you say. That my friends, is how to handle your constitutional business!!


Corey L. Scott, 333 N. Alabama Street, Suite 350, Indianapolis, IN 46204 (317) 623-4546, www.coreyscottlaw.com; @coreyscottlaw.com

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