Everyone Talks a Big Game About Pleading the Fifth

In reference to my post on pretrial detention and the prosecution of the January 6th Capitol rioters, someone asked:

Why in the world are people not capable of following the "shut up and lawyer up" advice? What possible good did this guy think would come to him from having a chat with the FBI agent investigating him for federal crimes? I'm just baffled. Sitting in my home at this moment, I am very confident that I have not knowingly committed any crimes at all, yet if an FBI agent came to my home, I would refuse to answer any questions at all without an attorney.

Fair question! Everyone says this, and (almost) everyone ends up talking. Out of the hundreds of cases I've had, I genuinely struggle to remember a clear cut example of a suspect shutting up and asking for an attorney. Instead, they talk eagerly and openly and almost always say something incriminating. Once that happens, my only recourse is doing shit like evaluating the shape of a staircase to argue it was positioned so that a reasonable person would believe they were detained and therefore functionally arrested, and therefore their statements should be suppressed because they were never properly Mirandized, etc.

For anyone interested, I strongly recommend this PBS documentary called "The Confessions" from 2010. It details an extremely bizarre string of false confessions about a brutal rape and murder of a woman. The cops set their sight on one man (who turned out to be maybe creepy but innocent), got him to talk to police and (falsely) confess to the crime, but then when they tested his DNA and found it wasn't a match, police interrogated him again and got him to accuse someone else (also falsely). That person was also in turn interrogated and also confessed, and that person also was a negative DNA match and that same person also in turn accused another person. This chain happened literally seven times. It wasn't until years later that they found the actual perpetrator who had convictions with a similar MO and was a 100% DNA match. Despite this evidence, prosecutors still argued that the seven men who confessed (but whose DNA didn't match) were still somehow involved in the crime. The theory was that they all showed up to this woman's house, randomly met this career rapist, and convinced him to rape and kill with them. It was bonkers.

I just wanted to say that it's easy to make a claim that you’ll always keep your mouth shut and ask for an attorney. I probably feel the same way regarding my willpower! But when someone is actually put in that situation, they often fail. It's not necessarily proof of a character flaw necessarily. Most likely, it's a reminder that institutional power dynamics can be startlingly terrifying.