Silence: the Valuable Right that Protects Your Client

right to remain silentDefense counsel should remember one basic rule when consulted by a client during a criminal investigation: Tell the client not to speak about the case with anyone. This means no talking to the police, probation department, girlfriend, boyfriend, mother, father, sheriff’s deputy, cellmate, news media, bail agent, or best friend.

Explain to your client that making statements can be dangerous. A client who has been arrested or fears imminent arrest naturally wants to talk his or her way out of trouble.  Fear of authority and fear of consequences combine to make this desire to talk a desperate one. But it’s always a bad idea. If a client has been arrested, law enforcement feels that there’s at least enough evidence to present the case for prosecution. Even in the best case scenario, any statement that changes this calculus will likely be deferred to the courts (the old “tell it to the judge”). In the worst case (the usual scenario), the statement will be carefully analyzed to help supply any missing elements of the alleged crime.

Advise your client to use the Constitution as a shield. Advise your client to tell the police that he or she wants counsel present for any questions. This simple request invokes two important legal protections. Miranda (stemming from the 5th Amendment), makes a statement inadmissible if it’s the product of custodial interrogation. Put simply, the police can’t ask about the event in question if the client is in their custody. But before the police subject the suspect to in-custody interrogation, neither the suspect nor his or her attorney can effectively invoke the suspect’s Fifth Amendment rights to counsel or silence, not even by filing a document in court purporting to do so. People v Avila (1999) 75 CA4th 416, 419.

The other important and lesser-known protection is found in the 6th Amendment right to counsel and explained in Massiah v US (1964) 377 US 201: statements deliberately elicited by government are inadmissible after defendant’s right to counsel attaches.

Consider giving the client an “alternative Miranda card” such as that suggested in Amsterdam, Trial Manual 5 for the Defense of Criminal Cases §51 (5th ed):

My lawyer has instructed me not to talk to anyone about my case or anything else, and not to answer questions or reply to accusations. On advice of counsel and on the grounds of my rights under the Fifth and Sixth Amendments, I shall talk to no one in the absence of counsel. I shall not give any consents or make any waivers of my legal rights. Any requests for information or for consent to conduct searches or seizures or investigations affecting my person, papers, property, or effects should be addressed to my lawyer: _ _[name, address, telephone number]_ _. I want all communications with the authorities henceforth to be made only through my lawyer. I request that my lawyer be notified and allowed to be present if any identification confrontations, tests, examinations, or investigations of any sort are conducted in my case, and I do not consent to any such confrontations, tests, examinations, or investigations.

If a defendant’s friend or relative contacts you first, call the agency immediately. When your first contact comes from a friend or relative of a suspect in custody, immediately call the appropriate arresting, investigative, and custodial agencies to request that any interrogation in progress stop immediately, and to advise them of the following:

  • The client is represented by counsel;
  • The client has been advised not to speak with anyone (if this has been done) without counsel present;
  • The client should not be contacted or interrogated without counsel’s consent; and
  • Each agency should so inform any additional agency, including out-of-state or federal agencies, of counsel’s request.

Keep in mind that the police don’t have to tell the defendant that counsel called when charges haven’t yet been filed. Moran v Burbine (1986) 475 US 412, 106 S Ct 1135. Given this, immediately and persistently attempt to see your client in police custody to personally advise him or her to remain silent. Thoroughly document all rebuffed attempts to see your client.

For more guidance on your initial contact with a client and handling client arrests, turn to California Criminal Law Procedure and Practice, chaps 1 and 4. If you’re unsuccessful in keeping your client from making statements, learn how to deal with confessions and admissions in chapter 23.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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