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By Jacob T. Rigney, Rigney Law
I take calls from people day and night, weekday and weekend, rain or shine. But, believe it or not, very few people ask the first, and perhaps most important question a person should ask. That question is: “Do I need a lawyer?”
It may surprise you, and my accountant, to hear an attorney say this, but the answer, occasionally, is no. But far more often, the answer is “Yes.” And then, instead of invoking their right to an attorney and consulting with one, many of those folks compound the problem, by admitting or doing things that help a clever prosecutor prove their guilt.
In my experience, there are several reasons why this happens. First, police officers are trained to put people in situations that keep attorneys out of the picture. In general, a police officer who spends 40+ hours per week enforcing the law is going to understand the law better than the random person they stop on the street. They have an intellectual advantage, just on the basis of their experience. But an experienced criminal defense attorney, on the other hand, will generally understand the law better than a police officer. So, when attorneys get involved, a police officer’s intellectual advantage doesn’t just disappear, it actually can become an intellectual disadvantage. They know this, and they will take whatever legal steps they can to keep the advantage on their side.
Another reason people often waive their right to counsel is that police officers are trained to project an air of friendliness, and to attempt to make a personal connection with the people they encounter. They develop a rapport with people, even suspects, in a way that gives them a false sense of security. Remember when your parents, in an attempt to get to the bottom of some issue, would put out a vibe or even come right out and say, “Tell me what happened, and be honest, because you’re not in trouble.” Well, the police do that too. Trouble is, the police aren’t your parents—and you are about to be in a lot of trouble.
The police also routinely provide suspects with false choices as enticement to waive their rights. The most common method is by threatening arrest. Generally, the officer makes it clear that he believes he has probable cause to arrest a person, and that if the suspect doesn’t want to speak, the officer is going to arrest him or her. The officer is also careful to not promise, but to let the suspect assume that the opposite is also true, that the officer won’t arrest the suspect if they talk. The suspect is then usually disappointed to learn the officer was going to arrest them either way, and that there was really no value at all in providing their side of the story.
Another reason people often waive their rights is simply because of the way people learn. As a college student, I took a class called public speaking. One of the first things I learned in that class is that the easiest way to lose an audience, and the sure-fire way to prevent an audience from retaining anything you’re trying to explain to them, is to read to them. So, of course, on the occasions when the police explain the right to counsel to people, how do they explain it? By reading a form, or reading off a card. It’s the worst possible way to teach someone something, and worst way to impress the importance of the rights a person gives up when they speak to the police without an attorney. So, of course, that’s the method the police choose to use.
Another problem is that people don’t ask the this question of the correct person. In case you’ve missed it, the police will act like your friend far more often than they will actually be one. So, a suspect will ask the police if they need a lawyer. The police often know that the answer is yes, but they will never admit that. Instead, they will deflect, or say they can’t give legal advice. The truth is, they know their intentions, and they have a plan for what will happen after the statement, even if they won’t admit it. In case you wonder about that, consider this: the Fraternal Order of Police in Indianapolis has an attorney on retainer, on stand-by, who responds to represent police officers in police-action shootings, 24 hours a day, 7 days a week. They know that it’s a good idea to have a lawyer, even though they’ll never admit it to you if you ask them if you need one. Instead, they deflect, in order to decrease the chance that you ask for one. So, don’t ask the police if you need an attorney. They will never tell you need one, even when you do. Ask an attorney instead.
The end result, when one or more of these factors apply simultaneously, is that people often waive their right to remain silent, and more importantly, their right to an attorney. With all these factors weighing against them, and the distractions that are inherent in an encounter with the police, too many people forget to ask that first question. Do I need a lawyer? Unfortunately, the answer is too often “Yes,” and the results are often a disastrous for those who don’t ask it.