Bivulatron

Here are some more “ambiguous” phrases which courts have found DO NOT invoke your right to a lawyer:

“Maybe I should speak to my lawyer first.”

“I might like a lawyer.”

“I think I should have a lawyer present for this.”

“Could I speak to my lawyer first?”

“How long until my lawyer gets here?”

And perhaps most egregiously – “Get me a lawyer, dawg – ‘cause this is not what’s up.”

Here are the magic phrases which you need to know if you want to invoke your Miranda rights:

1) “Am I free to leave?”

It’s worth asking this even if the answer is obvious. Even if the officer does not let you leave, by forcing them to admit that you are not free to leave, you are creating a record which your attorney can use to prove that you were in custody. Miranda rights only apply if the interrogation is custodial, meaning that police officers will frequently claim that their suspects were “not in custody” to get around their Miranda rights.

2) “I am invoking my right to remain silent.”

Simply staying silent will not invoke your right to remain silent. As absurd as this is, you must explicitly say that you are invoking your right to remain silent in order to invoke that right.

3) “I am invoking my right to an attorney.”

As stated above, you must be not only clear and unambiguous, but clear and legally unambiguous. Don’t get cute. Don’t get sassy. And on the flip side, don’t get intimidated and use verbal ticks to minimize your request. Say the line with those words exactly – say it clearly, and say it once, and then say nothing else.

Because even after you’ve done all this, the police can still try to get you to talk. They’re not supposed to interrogate you, but they’re allowed to make casual conversation, and if that conversation just happens to circle back around to the thing they wanted to question you about, well, that’s really your fault for talking after you said you wouldn’t, isn’t it? Can’t possibly fault the poor officers when you initiated – if you really wanted to have your rights respected, you wouldn’t have talked to them in the first place.

The police know this, and they will mercilessly exploit this loophole. So, once you’ve successfully invoked your Miranda rights, any and all conversation you have with police officers will put those rights back into jeopardy. 

Putting it all together:

Ask: “Am I free to leave?”

If they say no, say: “I am invoking my right to remain silent and I am invoking my right to an attorney.”

And then shut up and do not say a single thing to them for any reason whatsoever until you have actually spoken to an attorney. Yes, even if it takes hours. Yes, even if they start talking to you about something else.

Finally, a very important disclaimer:

Every single cop lies. Every single cop lies and manipulates and twists the situation around to get a confession. Even when they know that the person is innocent, even when they know that what they have isn’t enough to convict someone, even when they know that that confession has been made under duress or manipulation. All they care about is getting anything to put someone behind bars.

That’s the night that they hung an innocent man

Well, don’t trust your soul to no backwoods Southern lawyer

‘Cause the judge in the town’s got bloodstains on his hands

When the courts interpret “give me a lawyer, dog” as not asking for a lawyer, there is a problem either with the particular judge in that case, or with the court system as a whole.

Given the brokenness of the system, it makes sense to inform people to change their behavior, but this is not a full solution. The full solution is, if it’s a problem with isolated judges, to remove those judges, and if that is difficult to do, to make it easier to remove problematic judges. And if it’s a deeper systematic problem with the whole system then the solution is to reform the system such as by changing how people become judges, perhaps clarifying the law and perhaps enacting some sort of stricter penalty to lawyers who make such bad-faith arguments as described above.

I am not comfortable with a society in which a lawyer who makes a serious argument in a courtroom that “give me a lawyer dog” is not asking for a lawyer, being allowed to continue to practice law.

Lawyers have a high-paid, privileged profession. That sort of behavior is such an extreme stretch that it shows bad faith, it shows the desire to stretch the law and the truth so far as to have unconscionable outcomes.

Further, given just how little training police receive, I would not expect them to actually know the special phrases that they aren’t allowed to ignore, much less follow them.

“Am I being detained?” is not going to make the police treat you better in the moment. It’s to establish that you are in fact in police custody at that time, or alternatively that you legally are permitted to leave, for your lawyer to be able to argue later means certain other things in your favor, like your right to a lawyer (for example, there are obligations about medical care to people in custody, so if you were in custody and the police ignored your medical issue, that’s a potential area for your lawyer to go after them on, but it has to be established that you were in custody for that to work.)

Of course, the police would prefer suspects not ask for lawyers for as long as possible, so they would prefer to not interpret anything as asking for a lawyer. So of course there’s legal dickering about exactly what constitutes “asking for a lawyer” legally.

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