You Have the Right to Remain Innocent

by James J. Duane

So here are some of the things that actual criminal suspects have said in real cases, when they were trying in vain to end the interrogation and keep themselves out of trouble: “Maybe I should talk to a lawyer.” “[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?” “I think I would like to talk to a lawyer.” “What time will I see a lawyer?” “I think I want a lawyer.” “I can’t afford a lawyer but is there anyway [sic] I can get one?” “Could I call my lawyer?” “I think I need a lawyer.” “Do you think I need a lawyer?” Every single one of the above quotations was taken directly from the mouth of a criminal suspect who was trying to ask for a lawyer, but who tragically decided that he might sound more polite and respectful if he did not act too confident about his desire.3 In every one of these cases, the police ignored the suspect’s tentative and mealymouthed expressions of interest in a lawyer, persisted in their questioning, and successfully managed to get him to make some damaging statements (not necessarily a confession) that could be used to help convict him, and the courts concluded that such statements were admissible against the suspect because he had not made a clear and unequivocal request for a lawyer. In dealing with the police, that kind of politeness is a tragic mistake. In many of these cases, the suspect never would have been convicted if he had simply made his request unambiguous—and we will never know for sure how many of th...