Why You Should Remain Silent and Ask to See a Lawyer
Of course, youíve probably had encounters with the police in which you did explain everything and the police let you goÖor at least the consequences (a traffic ticket or a misdemeanor conviction) were no worse than they would have been had you kept silent. And itís true that in some cases, it doesnít matter whether you talk to the police or not. However, on those occasions when your luck or skin-color or clothing or income or politics are against you, talking to the police is more likely to result in going to prison, than in going free. And you canít necessarily tell in advance how much trouble youíre in. You might think youíre being pulled over for making an illegal left turn, when in reality the cops are planning to take you in on felony charges.
Also, even though you may be really clever, youíre at a huge disadvantage in trying to maintain control over the conversation when youíre being questioned by the police. Itís an event thatís relatively rare for most of us, and one in which weíre generally anxious and distracted. By contrast, this situation is extremely familiar to the police. Itís what theyíre trained to do, and they get more experience at it every day. So even the least talented cop eventually gets pretty good at questioning people. Itís arrogant to think that you can win at word games with the police, no matter how good a talker you are. The smart money is on saying only the Magic Words: Iím going to remain silent. I would like to see a lawyer. These phrases operate as a verbal condom, adding a critical layer of civil rights protection during interactions with cops.
Many people worry that if they donít cooperate fully with the police and answer all their questions, the officers will increase the charges against them. This is a mistaken assumption. Higher charges are more likely if you give the police additional information. And in any case, the offenses that the police choose are mere suggestions. Itís the prosecutor who actually decides what crimes to charge against you, based on the information in the police report. So, the less you say, the less material the prosecutor has for thinking up charges.
People also worry that if they remain silent and ask for a lawyer, the police will be annoyed and will take them to jail for sure, instead of releasing them on promise to appear. And itís true that refusing to answer questions and asking for a lawyer can be irritating to the police. But there are two reasons to remain silent and ask for a lawyer anyway:
(1) The police may not have the power to release you. For example, warrants, probation violations, or immigration holds normally require the police to take you to jail. And if youíre arrested for a felony, the police definitely canít release you. Yet you wonít know while youíre being questioned, whether the police intend to file felony charges or misdemeanor ones. And the police will encourage you to think that youíre only facing a misdemeanor, even if they fully intend to charge a felony. Thatís what happened to Justin in Use a Pie, Go to Jail.
(2) Insisting on your rights may mean that the police choose to keep you in custody, rather than releasing you. But spending a few hours or even a few days in jail (until you can bail out or a get a judge to release you), is better than spending a few years in prisonóand thatís more likely to happen if you spoil any chance of fighting your case, by answering police questions without talking to your lawyer first.
Itís harder in the short run to remain silent and ask for a lawyer, especially when the police seem visibly aggravated with you, but itís much safer in the long run.
People in custody also worry that if they donít answer all questions posed by the police, the officers will treat them more roughly. But being afraid of the police isnít a good reason for failing to use your constitutional rights. Itís true that the police sometimes beat people, but itís rarely because the suspect refuses to answer questions. Police violence is principally the result of racism, politics, and just general aggression on the part of the police officer, along with tolerance for such misconduct on the part of the police departmentónot the result of the victimís behavior. So, if youíre dealing with aggressive police officers, you should still protect yourself by respectfully saying, Iím going to remain silent. I would like to see a lawyer.
Using a humble tone of voice and facial expression, as well as addressing the officer as ďsirĒ or ďmaíam,Ē can be very helpful because police officers tend to be extremely alert to any sign of disrespect (real or imagined). If an officer gets the idea that youíre giving him attitude, heíll want to teach you a lesson.1 Of course, speaking respectfully doesnít come naturally for everyone. Some people speak arrogantly out of habit (and may not be aware of how they sound). Others feel that being humble to a police officer simply costs too much in terms of personal pride or political integrity. And some just canít resist baiting those in authority.2 Itís worth practicing the Magic Words with a friend, or in front of a mirror, so that you develop enough control over your voice and expression to say them properly under stressful circumstances. If youíre going to be provocative toward people with guns and clubs, it should be because you choose to do so, not because you canít help it.
1. It's important to remember that just because police misconduct is predictable, that doesn't mean that you deserve it. Even if you fight or flee, the police are not legally or morally entitled to beat you up. They're supposed to use only as much force as necessary to restrain you. And they're not supposed to react to verbal provocation. See Reporting Police Misconduct.
2. My friend David Solnit, in custody at the King County Jail in Washington, was asked to sign a form during booking. All he said was "no," but he said it with so much attitude that six cops promptly piled on him.