How police convince you to give up your right to silence


"You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."

Anyone who has ever seen a cop show on TV has heard these words before. We are all somewhat familiar with the Fifth Amendment and our right to silence, but most people do not understand exactly what this means or how to protect that right.

Any attorney worth his or her salt will tell you that you should never speak to police or other agencies about your case, and that your attorney should be present during any questioning. However, if you have not been arrested, police will not have read you your Miranda Rights, and you may not realize that you have the right to refuse to speak with them.

Many people also believe that by remaining silent and insisting upon an attorney, they will appear guilty. They would rather appear cooperative, so they try to answer an investigator's questions. Unfortunately, if police are questioning you, they likely already think you look guilty. Their job isn't to prove themselves wrong, but rather to gather enough information to prove that you are, in fact, guilty. You may feel that what you tell police will demonstrate your innocence or will somehow mitigate your guilt, but your words can be misconstrued or the things you feel minimize your culpability are used to prove your guilt.

How are some ways law enforcement can convince or manipulate you into giving up your Fifth Amendment right against self-incrimination? One way is the "Reid Technique," which you may have seen on television or movies as the "good cop/bad cop" technique. This interrogation technique relies on isolation--removing you from family and friends and leaving you alone in an interview room, where you will likely feel vulnerable and alone.

From there, one officer comes in insisting that he knows you are guilty. During this part of the interrogation, the officer tells you his theory of how you committed the crime. He or she can even lie to you to tell you they have evidence they don't actually have: your DNA was at the scene, your friend confessed and implicated you, etc.

After the "bad cop" has ignored your claims of innocence and insisted upon your guilt, the "good cop" comes in with empathy: he or she understands your predicament; he knows you want to get it off your chest; if you will just explain what happened and confess, there may be lesser charges, and he can tell the prosecutors how cooperative you are.

Please understand that this is false empathy. Police do not have the authority over the District Attorney and have no say in how you will be charged. 

Remember, if police are talking to you, they already believe you did something wrong (unless you were a witness to a crime). You will not be informed of your right to silence unless you have been arrested, but your right begins the minute your interaction with police begins.

One more important thing to note: a recent Supreme Court ruling has indicated that prosecutors can use your silence as an indication of guilt if you do not specifically claim your right, or if you effectively waive your right by talking and then clamming up when you change your mind. 

If police question you about your involvement in any crime--including questions asked in a traffic stop--politely ask if you are being detained or if you are free to go. If you are free to go, then do so. If police say you are being detained, tell them that you will not be answering any questions without an attorney--then back it up. Do not answer any more questions or say anything else except to insist on the presence of an attorney.

To find an Oklahoma criminal defense lawyer, call (405) 778-4800.


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