One analysis of forty-four proven false-confession cases revealed that more than a third of the interrogations lasted six to twelve hours, many lasted between twelve and twenty-four hours, and the average length was more than sixteen hours.59 The longer you speak to police officers, the more likely it is that you will confess to some crime that you did not commit—isn’t that enough of a reason to avoid speaking to them?
The point I am trying to demonstrate is how often and easily you and I make assumptions and deductions, drawing conclusions and inferences from what we have been told, without even being aware of the fact that we are doing it. And that is why it is so extremely easy for police officers, just like everyone else, to trick you into doing the same thing even when they have no awareness that they are doing it either. And look how easily you were deceived in just thirty seconds, even though you were able to read this statement with your own eyes, and even though I warned you in advance that I would do this to you. Now just imagine how much easier it would be for the police to do the same thing to you, either intentionally or otherwise, when they are selectively feeding you details about a crime for several hours in the middle of the night.
The Supreme Court of the United States made this point years ago, when it correctly stated that: “[O]ne of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. . . . [T]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”
First, you need to make sure that your silence is not held against you as evidence of your guilt if the case later goes to trial. And after Salinas, as we have seen, that means that you cannot simply remain mute in the face of police questioning, but rather must say something to invoke your legal right to refuse to answer their questions. Second, you also need to make sure that you get the police to stop questioning you and leave you alone. You need to bring the interrogation to an end, once and for all, and as quickly as possible. But that will not happen unless you say something. Just
In ordinary conversations, all of us are constantly making assumptions and deductions based upon things that our interlocutors did not actually say, but which we gather that they meant to imply. It saves us all a great deal of time, and it is all just harmless fun in the context of a chat between two friends. But this natural human tendency, which normally works in ways we do not even perceive, can get you into a great deal of difficulty if you ever agree to talk to the police. Even if you were not present at the scene of a crime and know nothing about it, it is impossible for you to answer questions (or just to make truthful denials) about that event for several hours without eventually slipping up and unintentionally revealing that you have made an assumption about something that you were not actually told. And heaven help you if even one of those assumptions turns out to be true, because then you have just incriminated yourself.
Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer. Is that honest? Not entirely, because it sounds like you are implying that you might be willing to talk to them after a lawyer shows up, and of course that is not true, and your lawyer will not agree to that. But a little dishonesty is a small price to pay to defend your freedom and your constitutional rights, especially when dealing with police officers who will lie to you until the sun goes down.
My client asked for my advice. I told her to send the agent a letter, explaining that she would be happy to consider answering any questions he might have, but only if he would extend her the minimal courtesy of putting those questions in writing, so that she could also put her answers in writing. What on earth would be so unreasonable about a request like that? Nothing at all. It would enable this woman to think carefully about her answers, possibly obtain the assistance of a lawyer, and check her records to make sure that her answers were accurate. It would also eliminate the very terrible danger, discussed at great length in this book, that the agent might later unintentionally misquote her in ways that could make her statements sound more damaging than they really were. The request was perfectly reasonable—and, I might add, it was exactly what any federal agency will tell you to do if you want to get important information out of them.
When you ask for a lawyer, do not worry about sounding polite, because that will make you sound unduly tentative or equivocal. Never ask the police officers what their opinion might be. In fact, do not ask any questions when you insist on the presence of a lawyer. Do not even use the words I think or might or maybe. You need to say, with no adverbs, in only four words, “I want a lawyer.” And then you need to say it again, and again, until the police finally give up and realize they are dealing with someone who knows how our legal system really works.
By invoking your Sixth Amendment right, if you are charged with a crime and the prosecutor wants to use your invocation of that right against you, you will probably be able to keep that information away from the jury under the law, because the federal courts (at least so far) generally agree that you cannot tell the jury that the defendant has asserted the Sixth Amendment right to a lawyer, or to use that as evidence against the defendant.2 And even if you cannot keep it out of the evidence at trial and the jury is allowed to learn what you said to the agent, it will sound far less suspicious if you merely told the officer that you wanted a lawyer present before you agreed to be interviewed. That makes it sound, after all, like you were willing to answer their questions.
It isn’t the changes that will do you in; it’s the transitions. They aren’t the same thing. Change is situational: the move to a new site, a new CEO replaces the founder, the reorganization of the roles on the team, and new technology. Transition, on the other hand, is psychological; it is a three-phase process that people go through as they internalize and come to terms with the details of the new situation that the change brings about.
