In one of my previous videos I talked about various police interrogation techniques.
People commented with their helpful advice -- lawyer up; stay silent; say nothing!
Indeed, one has the right to remain silent and the right to legal counsel.
Today I'd like to talk about how to invoke those rights.
Because you know what?
The invocation of legal rights may be a little trickier than one might have initially thought.
So, in this short video, let me tell you the story, and please bear with me until the end.
Research has shown again and again people attempt to invoke their rights but fail to
do so in a legally valid manner.
And this is because the invocations of legal rights need to be shaped in a particular form
of language that can hold up in court.
The reason that the courts, state and federal, are quite strict about the language used for
invocations of rights, is that such utterances, or the saying of such sentences, have important
legal consequences.
And that is why a lot of the legal talk that we can think of all sounds very scripted,
standard, and similar.
They are almost always the same.
Think about it -- by the power vested in me by the State of New York, I pronounce you
husband and wife.
Or, we the jury in the above entitled action find the defendant guilty as charged.
Or, You are under arrest.
You have the right to remain silent.
Anything you say can and will be used against you in a court of law…
These sayings sound so standard and scripted because they need to be.
Legal speeches have consequences.
The mere utterance of these words will bring about specific legal outcomes that are intended
and specifically designed to occur when these words are said out loud.
So, of course, legal talks sound quite a bit different from other types of talks.
Now the problem with this is that because most people are not trained legal speakers,
we might be unaware that what we are trying to say when attempting to invoke our rights
may not be legally efficacious.
For instance, if I try to invoke my right to legal counsel by saying -- may I speak
with a lawyer?
Because I phrased it as a question, a reviewing court may not recognize this as a valid invocation.
Because instead of invoking my right in a clear manner, I merely asked a question about
potentially invoking my right, and a police officer is certainly not obligated to answer
this question of mine.
So, it is not advisable to try to invoke one's right in the form of a question, or using
softened and confusing and indirect language.
But those types of language is exactly what one tends to use when dealing with the police.
Social psychological and sociolinguistic studies have repeatedly shown that in situations of
power asymmetry or power imbalance, the less powerful party tends to express themselves
using hedged and indirect language.
A police interrogation is certainly such a situation where power is quite unbalanced.
Just look at my previous video, you will see that the interrogation is typically set up
to give the police officer as much power and control as possible.
In such a situation, it becomes even more natural for ordinary people like you and me
to speak in an uncertain, indirect, and softened manner.
Thereby making it more difficult for us to correctly and validly invoke our rights.
Let's take a look at some actual examples, some actual quotes, of failed invocation attempts.
Here are a few examples of people trying to invoke the right to legal counsel, one said
Could I call my lawyer?
(Dormire v. Wilkinson, 2001) Could I get a lawyer?
(U.S. v. Wesela, 2000) Can I speak to an attorney before I answer
the question to find out what he would have to tell me?
(Taylor v. Carey, 2007)
The reviewing courts ruled that these invocation attempts were legally invalid because these
were mere questions about the theoretical possibility of legal counsel, rather than
clear, unambiguous, unequivocal invocations of the right to legal counsel.
A few more examples:
I think I would like to talk to a lawyer.
(Clark v. Murphy, 2003) It seems like what I need is a lawyer.
(Oliver v. Runnels, 2006) Actually, you know what?
I'm gonna call my lawyer.
(People v. McMahon, 2005)
These also did not hold up as legally efficacious invocations because the speakers used softening
language with qualifying clauses.
We should avoid that.
We should also avoid asking the police for logistical help when invoking the right to
legal counsel.
For example, maybe I lost my attorney's phone number, perhaps I cannot find his business
card at this moment.
Surely I could just ask the police officer to contact my attorney for me, right?
Well, in U.S. v. Tran 2006, the arrestee asked the police to help him retrieve his lawyer's
business card, believing that he was invoking his right to legal counsel by asking so.
The court subsequently ruled that it was not a legally valid invocation.
Another case -- Jackson v. Commonwealth 2006, a suspect who was in a hospital asked the
police "Could I get a phone in here so I can talk to a lawyer?"
This request was also ruled as legally invalid because it was ambiguous, and again, it was
merely a question.
So, these examples above illustrate how one may fail to invoke their right to legal counsel
if they did not shape their language properly.
What about the right to remain silent?
Let's look at a few failed invocation attempts.
I don't got nothing to say.
(U.S. v. Bank, 1996) I don't wanna talk no more.
(U.S. v. Stephenson, 2005) An arrestee responding to an officer's request
to make a statement with "Nope."
(James v. Marshall, 2003)
All these were considered too ambiguous or equivocal to count as legally valid invocations.
What about saying nothing?
Staying completely silent?
Maintaining an absolute silence may also be considered as an invalid invocation attempt.
Obviously, there can be differences among different geographical locations.
But in general, as a matter of law, one needs to explicitly express oneself in order to
invoke and claim one's right to remain silent.
This may sound strange, but to invoke the right to remain silent, one needs to express
the invocation in a clear, unambiguous, and unequivocal manner in order to trigger constitutional
protection.
So, just staying completely silent may not cut it.
And finally, there were also cases where the combination between the refusal to answer
questions and the request for a lawyer, so putting the two together, was considered insufficient
invocation of rights.
Examples: I don't even want to talk unless I have me
a lawyer and go through this shit.
(Harper v. State, 2001) I'll be honest with you.
I'm scared to say anything without talking to a lawyer.
(Midkiff v. Commonwealth, 1995) Responding to police questioning "Fuck you,
talk to my lawyer."
(People v. Varnum, 2004)
All these were ruled as legally invalid.
So now I think we can all agree that to invoke one's rights can be trickier than we thought.
Many legally naïve citizens might not even know that we have these rights.
And even if they know about these rights, they might not know how to properly invoke
them in a legally efficacious manner.
Their attempt might be too soft -- by asking: is it possible that I call a lawyer?
Or they might get too fancy by saying -- I take the fifth, which is too ambiguous.
So, to properly invoke one's rights, state the following in a calm, clear, assertive,
and respectful manner:
I invoke my right to remain silent.
I respectfully decline to answer any questions.
I invoke my right to legal counsel.
Please give me a lawyer immediately.
Thank you officer.
After these invocations, the police officer should cease questioning you.
but if for whatever reason they continue to question you, you may simply repeat your invocation
statements.
It has also been reported that after you have invoked your rights, the officers would not
talk to you anymore, what they do instead is they talk to each other ABOUT you.
saying things like -- I guess we have no choice but to put this guy in the jailhouse tonight;
or: he's gonna spend a few days down at the station with some really scary dudes; or whatever.
Obviously, by saying those things, the officers are still trying to get you to waive your
rights.
So, be careful with that.
Before I end the video, let me also say this -- it is important during police citizen encounters
that we treat police officers with respect.
The absolute majority of police officers are decent, good, kind people doing a tough and
potentially dangerous job.
We should definitely respect that.
But at the same time, we should also know our rights and protect ourselves.
The examples I cited in this video are from this article:
You have the right to remain silent, but only if you ask for it just so: the role of linguistic
ideology in American police interrogation law.
Published in the international journal of speech, language, and the law.
Thanks for watching this RR video, please like and sub, see you next time.
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