How to talk to police without a lawyer

Should someone talk to the police without a lawyer present?

  1. The criminal justice system overwhelmingly depends on people to unwittingly incriminate themselves for convictions, which they do.
  2. If a criminal suspect invokes the right to counsel, or the right to remain silent, they generally don’t incriminate themselves.
  3. A criminal suspect need only request a lawyer for all interrogation to stop. They DO NOT need to already have a lawyer – just to ask for one. Just a lawyer in general. These are magic words which stops an interrogation.

Custodial interrogation cannot take place with Miranda warnings and a waiver of the rights to remain silent and the right to have a lawyer present before and during questioning.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

5th Amendment to the U.S. Constitution

When are Miranda Warnings required to be read? Miranda warnings are required to be given when a suspect is in custody and being interrogated OR when a suspect believes that he is in custody and being interrogated. “Interrogation” includes not only express questioning but also its “functional equivalent,” namely, any conduct “that the police should know [is] reasonably likely to elicit an incriminating response.” When is someone in custody? That depends. Were they asked to exit a vehicle during a stop? Were guns drawn? Was force used? Were they placed in handcuffs? Were they told they weren’t free to leave?

A suspect can waive Miranda rights, but cannot waive the reading of Miranda warnings by law enforcement. Miranda warnings may need to be read again by police if too much time has elapsed in between the reading of the warnings and the subsequent interrogation.

When are Miranda Warnings NOT required to be given?

Officers can conduct general on-scene questioning as to facts surrounding a crime or other general fact finding without Miranda warnings. Officers can ask about the guilt of others/third parties without giving Miranda warnings. Miranda warnings don’t apply to voluntary statements made prior to interrogation. Miranda warnings don’t apply to statements of guilt made to persons other than law enforcement. Miranda warnings don’t apply if the person interrogated is not in custody.

Miranda warnings are generally not required at traffic stops. See Pennsylvania v. Bruder , 488 U.S. 9, 109 S. Ct. 205 (1988). In this case, the Supreme Court re-emphasized that ordinary traffic stops do not involve custody for the purposes of Miranda, and therefore, police do not need to inform those stopped for traffic violations of their Miranda rights unless taken into custody. Officers can generally ask any questions they want to suspects who are not in custody. See Arizona v. Johnson, 555 U.S. 323, 333 (2009). “An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”

What about silence? Post-arrest silence by a defendant after Miranda warnings have been given is inadmissible against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). If a defendant gives a statement, however, his silence as to other matters may be admitted. Anderson v. Charles, 447 U.S. 404 (1980); see United States v. Mitchell, 558 F.2d 1332, 1334–35 (8th Cir. 1977). A defendant’s pre-arrest silence may be admitted, Jenkins v. Anderson, 447 U.S. 231 (1980) as well as silence after arrest but prior to warnings. Fletcher v. Weir, 455 U.S. 603 (1982).

When can an officer not interrogate a suspect at all?

An officer may not interrogate if the suspect has requested a lawyer.

An officer may not interrogate if the suspect has in any manner, at any time prior to or during questioning stated that he wishes to remain silent.

What sort of behavior by officers may render a confession invalid in court?

A confession MAY be invalid if obtained as the result of withholding food, drink or bathroom access. A confession may be invalid if obtained following threats, coercing or tricking a suspect into waiving Miranda Rights. A confession may be invalid if the interrogation is too long; or, If physical force is used; or, If promises to help a suspect if he or she confesses; or, If the officer misrepresents the body of evidence collected against the suspect

Polygraphs: to do or not to do?

There is a common misconception out there that I have consistently (about 100% of the time) encountered in criminal defendants (or soon-to-be criminal defendants) that (1) taking a polygraph/ “lie detector test” can prevent their being charged with a crime if they “pass”; and (2) that if they fail the test, the results are not admissible in court.

Let me quickly and humanely put these myths to rest.  If you take a polygraph test in West Virginia, your local Andy Griffith Sheriff, or your local friendly West Virginia State Police officer will NOT be giving you the test.  They will be bringing in a professional conviction machine in to convict you.  What I mean is this.  There are various state police officers who specialize in giving polygraphs.

The investigating officer, wherever he may be, convinces a gullible suspect into proving that he is innocent by taking a polygraph.  The expert then arrives, and has the suspect sign various papers, saying that he or she understands his rights (the right to remain silent, the right to an attorney, etc.) as well as the polygraph process.  Then the suspect is asked various questions.  Of course, the suspect fails.  The the expert polygrapher/interrogator asks, “why do you think you failed?”  Then everything the suspect says thereafter, the officer puts into his official report and thereafter testifies to at the trial, if necessary.  In all likelihood, the trial never took place because the anticipated testimony of the polygrapher was enough to force a plea.

So understand this: the results of the polygraph indeed are not admissible against you.  However, everything you say “can and will be used against you in a court of law.”  It’s a trick.  It’s not about the results, they are irrelevant.  If the cops weren’t convinced you were guilty you wouldn’t be there.  It’s all about obtaining a statement from you.

I have lost clients before because I refused to allow them to take polygraphs.  They think that they can take them and pass them and prevent charges from ever being filed against them.  The cops tell them, don’t listen to that attorney, I want to help you, he’s going to get you charged.  Then guess what, they do it anyways and convict themselves.

Don’t say I didn’t warn you.

– John H. Bryan, West Virginia Attorney.

Foundation of a false confession

Grits For Breakfast (hat tip: Simple Justice) posted on an insightful discussion by the Texas Court of Criminal Appeals’ Criminal Justice Integrity Unit (hey, we need one of those in West Virginia….) on false confessions and their proposed causes.  Grits notes that 

most police interrogation training in the United States is based on the so-called “Reid method,” which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.


Much of the behavioral analysis taught by Reid and Associates amounts to “faux psychology,” said [Richard] Leo (San Francisco academic presenting to the above said group), about how guilty and innocent people behave that doesn’t stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become “human lie detectors,” but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.

This guy is a perfect example of this.  For years I have been watching all of those cold case murder investigation shows.  In many, many of them, there is one central detective that was originally on the case, who was convinced that so and so committed the crime – despite the evidence.  Detectives are trained to believe that they can be human lie detectors, and it becomes personal to them – so much so that they start to have tunnel vision.  Then, 30 years later you see the case on some show, and you think, how could they focus on that person when it was obviously the other person?  It works the same way with false confessions.  Some “interviewees” can actually be convinced that they did have something to do with the crime.  Others can be tricked into confessing some guilt or sorrow regarding the victim, which can be portrayed as a confession.

I think John Grisham’s book, “The Innocent Man” should be required reading for criminal defense attorneys.  It will blow your mind how in one small town, so many people could be convicted of false confessions using the same flawed tactics by investigators.  Specifically, when you take an overbearing interrogator and match that person with a guarded, feeble, shy, and honest “interviewee,” the chances rise dramatically that the innocent “interviewee” will says something incriminating.  Meanwhile the real guilty person is long gone.

 – John H. Bryan, West Virginia Attorney.

Don’t talk to the police

I came across a great video lecture from a law professor posted on the Georgia Criminal Law Blog that everyone should watch – attorneys and laypersons alike.

Don’t talk to the police, at any time, under any circumstances. Period.

The latter half of the video features a cop telling “the other side of the story,” and was the subject of a previous post by Scott Greenfield, titled “One Lecture By a Cop with Many, Many Lessons,” who commented that this displayed some revealing insight into the practice and procedure of police “interviewers.”

– John H. Bryan, West Virginia Attorney

Charged With a Crime in WV? Keep Your Mouth Shut and Call a Lawyer…

A troubling trend is emerging in West Virginia. According to my own experience, and to those of some of my colleagues, State agencies, such as ABC (alcohol beverage control commission) are beginning to become actively involved in criminal cases, such as by trying to assist law enforcement in obtaining statements from suspects or defendants.

For instance, if someone who has an alcohol license is charged with a crime, they will suspend the alcohol license in “the interest of public safety.” Then, to get it back, they request a statement of why you are innocent of the charges. Undoubtedly that statement would end up right in the prosecutor’s file and would be used against you at trial. And if you don’t give the statement, your license remains suspended and you lose the income with which you were depending on to pay for your defense. Many times, the crime charged doesn’t have anything to do with selling alcohol or actual safety of the general public, they are just hassling you. And they can. Your only recourse is to request a hearing before the ABC Commissioner, and then to appeal that decision to the Kanawha County Circuit Court, and then to the WV Supreme Court of Appeals. By the time an arbitrary decision is overturned, you have gone out of business.

Something else they have been doing: if someone is charged with a crime involving consuming alcohol – for instance DUI, they will request the persons help in obtaining information on the establishment where the alcohol was bought or consumed. They trick you into believing that by helping them find out information about this establishment, that it will help your case, or that it will remain confidential. In reality, the statement gets forwarded to the investigating officer or prosecutor that same day.

Moral of the story? If you have been charged with a crime, or even investigated regarding a crime, keep you mouth shut and call a lawyer.

– John H. Bryan, West Virginia Attorney.