In a post this week, I emphasized the importance of exercising your right to a lawyer, as soon as you are arrested. Some readers may have thought that it’s not necessary to immediately get a lawyer if you just stay quiet and exercise your right to silence.
Staying silent is a good start, but it’s insufficient. The Supreme Court has explicitly left open the possibility that suspects who have invoked their rights to silence can still change their minds. Suspects can show they’ve changed their minds by simply speaking. Once someone starts speaking, the floodgates have opened and the police can start or resume full-scale interrogation. Someone can explicitly tell police that they want to remain silent, but if they mention something related to their case—even if it’s only tangentially related—then they’ve legally shown their willingness to talk.
Also, police are allowed to re-approach someone who has already invoked their right to silence. If a reasonable time has passed, police officers are allowed to start talking to a suspect in the hope that they will have changed their mind. If they suspect starts talking, then as a far as the Supreme Court is concerned, they’ve obviously changed their mind. Some states have rules or laws prohibiting police officers from using either of these tactics, but Utah isn’t among them. Police departments in Utah are allowed to re-approach suspects who have invoked their right to silence, and they are allowed to start questioning suspects who change their mind, without confirming that they actually want to to relinquish their right to remain silent.
Invoking your right to an attorney is different, though. Once someone says they want a lawyer, all police questioning must stop. They aren’t allowed to re-approach the suspect, ever, without their attorney present. Suspects can’t casually change their minds either; suspects have to explicitly sign a waiver stating that they no longer want a lawyer. Getting a lawyer sooner, rather than later, is your best chance of minimizing any potential legal problems you may encounter.