Day after day, clients ask Dave Z. and the rest of the Shapiro Zwanetz & Lake (SZL) crew, “Can the police really do that?” in reference to scenes from popular TV shows and movies. In the Pop-Culture Corner, Dave Z. will compare and contrast scenes from television shows and movies with the real life rules set out by the Constitution of our great country. First up is HBO’s “The Wire.”
Warning: “The Wire” often has scenes containing inappropriate language. Therefore, please be advised that the video clips occasionally attached for reference are probably not sufficient for viewing at work or by people under the age of 17.
In our second post of the “Can the Police Really Do That?” series, we will address whether or not the police can continue to ask you questions after you ask for your lawyer.
Asking for a Lawyer
The police officers on The Wire, Law & Order and other crime dramas often play fast and loose with Miranda warnings and suspects’ 5th Amendment rights. Revisiting The Wire, in Season 3 Episode 2, officers Bunk and McNulty are investigating what they believe is a possible murder and are interrogating a member of the Barksdale crew, Cheese.
In this clip
Cheese attempts to invoke his Miranda rights against self-incrimination and his right to legal representation when he says “Aww hell no, ya’ll ain’t laying no bodies on me. Lawyer time!” Instead of stopping the interrogation, Bunk and McNulty continue with Bunk imitating a conversation they overheard on the wire.
The question is, was Cheese’s “Lawyer time!” statement enough to invoke his 5th Amendment rights and stop the interrogation.
The short answer to this one is, probably not.
Miranda rights are the statements read to a suspect once he or she has been arrested. These statements are just a clarification of your 5th Amendment rights, specifically the fact that “(n)o person … 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.” While some states modify the language of the Miranda warning, they typically state:
- You have the right to remain silent.
- Anything you say or do may be used against you in a court of law.
- You have the right to consult an attorney.
- If you cannot afford an attorney, one will be appointed for you
In 2010, the United States Supreme Court clarified what was required for a suspect to effectively invoke his or her Miranda Rights and stop a police interrogation. The Supreme Court in Berghuis v. Thompkinsheld that a defendant must explicitly state that he or she wishes to be silent, must explicitly ask to speak with an attorney, and then remain silent.
Unfortunately the new interpretation of how a suspect must invoke his or her 5th Amendment rights puts an extreme burden on individuals who are already under the stress of an arrest and police interrogation. As a result, I encourage you to invoke your rights as soon as you are in police custody and refuse to speak to the police so that there is no confusion as to your intent to invoke your rights. Don’t make the mistake Cheese made by assuming the statement “Lawyer time!” would be sufficient to invoke his 5th Amendment rights and stop the interrogation.