It happens so often. An individual voluntarily talks with law enforcement agents in an effort to appear cooperative, but the prosecutor later labels the statements as incriminating “admissions.” Whether made before or after arrest, such statements prove compelling evidence. For example, during a recent trial, the prosecutor successfully argued to the jury that a Harvard professor unquestionably made false statements to government agencies because “the defendant himself has said that he did” during an interview.
Example of the Harvard Professor
Federal agents arrested a distinguished professor at Harvard University for making false statements to federal agencies regarding his involvement with China’s Thousand Talents Program and an affiliated Chinese university. When an agent advised him of his Miranda rights following arrest, the professor responded:
No, I understand my rights I guess. Um, yeah I’m willing
to sign this but I guess I think probably I should have ah, an attorney.
Following solicitous comments from the agent seeking to clarify whether he would answer questions, the professor continued,
Sure, I understand that. Um, ok I’ll sign it and then we can
start talking and if I feel like I need some. . .
The professor did not finish that sentence, and he apparently did not perceive that he needed assistance during the recorded interview because he continued talking.
Prior to trial, defense counsel moved to suppress the professor’s statements made during the interview on the ground that the professor had invoked his right to counsel. The District Judge disagreed, finding that the professor’s comment regarding an attorney “was not sufficiently unambiguous to constitute an invocation.”
The prosecutor made the most of the statements during trial. Among other things, the jury saw an agent ask the professor why he had not been honest about his relationship with the program. In that stressful situation, and without guidance or preparation, the professor replied:
It was wrong . . .What can I say? It was wrong.
The jury convicted the professor in three hours.
An Uneven Field
Agents have an overwhelming advantage when they ask to speak with you regarding your conduct (as opposed to asking for your description of a getaway car while investigating a robbery you witnessed). Agents assemble evidence against you and prepare their questions in advance. Agents choose the time to contact you, the place to contact you, and the method to contact you. Even if you are interviewed in your home, agents retain the advantage because they are trained interrogators with intimidating badges and guns who can be willing to impose upon your hospitality in order to incriminate you. Also, agents are not required to tell the truth, whereas everything you say can be used against you to prove the charges against you.
Say the Magic Words: “Yes, I Want a Lawyer”
When agents come knocking, you are on your own. That’s the reason you should ask for a lawyer. Before speaking with agents, you need time – time to obtain advice and guidance and time to review documents and refresh your recollection. You can gain the advice and time you need to level the playing field by requesting a lawyer. However, you need to be explicit. As shown by the professor’s situation, ambiguity will not protect you. You must say, “Yes, I want a lawyer.”
It may feel embarrassing, but agents prey upon that emotion in the hopes you will talk instead of requesting a lawyer. Although it may feel awkward to request a lawyer, it will be more embarrassing to hear the prosecutor portray your words in court as if they are admissions. Avoid this result. Practice saying it a few times: “Yes, I want a lawyer.” Then stop talking. Thereafter, if the need ever arises, you will be ready to say only “Yes, I want a lawyer” and nothing more. Such a request in no way admits guilt or wrongdoing on your part—although the agents may suggest as much. Rather, saying “I want a lawyer” is the sign of someone who knows their legal rights and is interested in conveying complete and truthful information.
This post emphasizes the importance of asking for a lawyer instead of talking to agents without guidance. In a related post, we discuss the importance of ensuring the accuracy of statements on government applications.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.