I advise most of my clients to invoke their rights to remain silent, to have counsel present during any interviews, and to refuse to answer any additional questions. Once a suspect has invoked their right to remain silent on one subject, the police can continue to question them about other, unrelated crimes they are investigating; it prolongs the cat-and-mouse game and often leads to statements which in retrospect, a client wishes they had not made. However, if a suspect invokes their right to counsel, or to an attorney, all police questioning must stop, except that necessary to complete the booking procedure (name, address, date of birth, etc.). Recent Supreme Court caselaw may allow the police to recontact a suspect or continue asking questions, so it is imperitive that a suspect have the force of will to remain silent and refuse to engage in any conversation until they have consulted with competent counsel.1
Some clients believe they can speak with the police because they are “smarter” or more savvy than “the average criminal.” This is often a big mistake: no matter how smart you are, you are playing at a game the police play every day, and indeed are well trained to play. Would you assume you could fly an F-15 without training because you are smart? Would you attempt to look at a microscopic slip to do your own DNA analysis without training?
Probably not.
Similarly, the vast majority of people benefit from the advice of a trained advocate when dealing with the criminal justice system.
Police make the decision whether there is probable cause to arrest: but they are not the final arbiter of what charges a defendant will face. Once a suspect has been arrested, they will generally be booked (processed through the jail system), and then face arraignment. In the time between the arrest and the arraignment, another group will evaluate the police officer’s reports and witness statements to determine charges: The district attorneys.
