Why you shouldn’t talk to law enforcement without a lawyer

Via Mark Frauenfelder, here is civil rights and criminal defense attorney Harvey Silverglate explaining why you should never talk to the FBI without a lawyer present AND a tape recorder running.

Earlier I wrote about a law professor and a police chief who both agree that one should always invoke the Fifth Amendment to police until one can speak to a lawyer. I have also written before about Silverglate and how to respond when questioned (scroll down).

I have never been questioned by the police about any crime. I don’t even ‘have’ a lawyer, only friends who happen to be lawyers. I suspect that most of us do not see ourselves as having to protect ourselves from law enforcement officers. Not only that, we want to help them solve crimes. It feels vaguely uncomfortable to think that one should tell the law enforcement that one will not talk freely to them. It is as if one has something to hide.

But it is precisely that sense of unease that they exploit in getting us to talk. What Silverglate reminds us is that being honest and law-abiding and having nothing to hide is no protection against being used as a pawn in order to catch other people. Your rights may be casually sacrificed if they have bigger fish to catch.

When I was writing this post, I started to wonder if I was becoming paranoid. The rise of the national security state and the recent trend towards institutionalizing violations of civil liberties has clearly made me much more accepting of the advice of people like Silverglate than I would have been a decade ago.


  1. glendenb says

    You aren’t being paranoid. Law enforcement exists to solve crimes, not protect your rights.

    It’s been a few years since I read it, but the book Mistakes Were Made (But not by me) discusses the techniques used by law enforcement for interrogations which are designed to elicit confessions and/or information and statements which implicate people in crimes. The authors also discuss the way law enforcement officers interpret a great many things as signs of guilt which are not signs of guilt. Many agencies use the same manual on interrogation and it includes all sorts of tactics and techniques whose goal is to get people to say incriminating things and to prolong interrogations. Asking for a lawyer forces law enforcement to decide if keeping you is worth their time and trouble.

    The single most powerful phrase any one can remember when dealing with law enforcement is four words -- “I want a lawyer.” If police just want to bring you in for questioning and you ask for a lawyer, chances are good they’ll send you away. If they think you’re guilty of something, observer bias kicks in and they’ll interpret your actions as signs of guilt so asking for a lawyer is absolutely necessary to protect your rights.

  2. steve84 says

    That brings up an interesting question. How does that work when you ask for a lawyer and you don’t have one on speed dial? Do they give you the yellow pages so you can call someone?

  3. other dave says

    Silverglate is quite a guy.

    I think you would benefit from googling Silverglate Water Buffalo and reading more about him and his philosophies and then looking around your bloghort and asking what your various cobloggers would say about the Water Buffalo Incident?

  4. left0ver1under says

    Never feel that you “have something to hide” -- not by cops, not by yourself.

    On the contrary, when cops object to you having a lawyer and a tape recorder, it’s because they intend to falsify evidence and make false statements about you.

    If cops were honest (few are), they would be happy to wait. The fact that they want to talk to people -- not “suspects” but people -- without a lawyer demonstrates their corruption.

  5. bad Jim says

    There was an episode of Homicide: Life on the Streets which hammered this point home. It’s generally not in your interest to talk to the cops without a lawyer present.

    I’ve never been in that situation, though, and the lawyers I know deal with patents, corporations and estates. There used to be a criminal lawyer in town with the same name as mine, and if the opportunity had presented itself I might have hired him, as much for the inherent comedy as the possibility of escape in the confusion after conviction (which Jim?).

  6. says

    It’s a TV trope — “get him to talk before he lawyers up.”

    Well, tough shit. If ever I’m invited by the police to “chat”, we’ll do so when I find a competent attorney who will be present at each and every “chat”.

    @4: The “one phone call” rule I think is pretty much gone by the wayside and only applies if you’re under arrest in any event. In any event, call a friend/family member and have them find someone. If you can’t afford a lawyer, one will be appointed for you — that takes some processing time. But you’ll have to be patient.

    Sitting silently is tough. In fact, it’s a very effective interviewing technique to ask a question and then say nothing. There’s a void that people feel the need to fill. And in the setting of a police interview, they’ll keep coming at you at intervals, even when you’ve said you want a lawyer.

    Never ever ever ever ever waive your rights to a lawyer. Never ever ever. Not if you’re guilty, not if you’re innocent, not if you’re not a suspect, not anytime. Never ever ever waive your rights.

  7. says

    Funny what you learn from shows like L&O:CI.

    1) Even the wealthiest, most powerful people in the country will just chat away with police and prosecutors without legal counsel present.

    2) Even if their lawyer is present, he or she will remain silent in the face of intense questioning from detectives.

    (I know these are dramas and they wouldn’t exactly zip along otherwise, but it’s extremely fake.)

    3) Invoking your rights and demanding a lawyer is unethical and a pretty reliable marker of guilt.

    4) Public defenders are uniformly useless.

    CI has many things to recommend it (including a portrayal of police and prosecutors that wasn’t entirely flattering), but a useful portrayal of the right to counsel isn’t among them. It’s interesting to watch it and then read Will Potter’s blog.

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