DIFFERENCES BETWEEN SUSPECT INVOKING RIGHT TO COUNSEL and RIGHT TO SILENCE

Written by: Captain Mike Schentrup – Owner/ Lead Trainer at Advanced Police Concepts

Most LEO think these two statements by suspects are the same, but are they?

SCENARIO:  You arrest someone for robbery and bring them to the station to be interviewed.  You then read them their Miranda rights and the suspect says:

  1. I want a lawyer, or
  2. I don’t want to talk

Are these statements the same?  The answer is yes AND no!

As I described in my previous article DO’s and DON’Ts AFTER A SUSPECT INVOKES THEIR RIGHTS, we cannot re-approach, we cannot explain to them why they should talk to us, we cannot tell them how much we know, we cannot do anything except tell them what they are being charged with.  (You can tell them how long the arrest affidavit might take to write and to knock if they need to use the bathroom, or something to that effect).  But there are some differences. 

If a suspect invokes their right to counsel, that is almost absolute. In fact, if they invoke their right to an attorney, no one can talk to the suspect about any cases, including other jurisdictions who might be with you about totally unrelated cases.  ONLY the suspect can re-approach.  This does change after 14 days.  (See me talk on Maryland vs Shatzer, USSC, 2010).

But when a suspect invokes their right to silence, it really depends on how they do it.  Let me give you some examples:

  • “I don’t want to talk right now.” This is a timing statement.  Most courts recognize if you give the suspect a break from questioning, you may re-approach to see if they changed their mind. Most courts like at least 2 hours, but it will vary, but I would give them at minimum one hour.
  • “I don’t want to talk to you.” This is a very specific statement related to “you.”  They might be more comfortable talking to another detective. Tuck your ego away and ask for some help.
  • “I don’t want to talk, take me to jail.”  This one is tricky. If the suspect is under arrest, they are on your timetable.  You are not required to immediately transport them.  Again, a break in contact may be enough to re-approach.

As you can see, when someone invokes their right to silence, it really depends on what they say.

Remember, when dealing with juveniles, the courts take a much more strict approach, so be careful.

And as always, every state and jurisdiction has different rules. Be a student of case law in your state. Always read your legal bulletins

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