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.
Did the Second Amendment protect militias, or an individual right to a gun? The answer: both, and neither. It protected the individual right to a gun . . . to fulfill the duty to serve in a militia. To the Framers, even our question would make little sense. To us, today, their answer makes little sense.
Transition is different. The starting point for dealing with transition is not the outcome but the ending that you’ll have to make to leave the old situation behind. Situational change hinges on the new thing, but psychological transition depends on letting go of the old reality and the old identity you had before the change took place.
