We think it appropriate to specify a period of time [after a suspect invokes his right to an attorney to allow police interrogation without the attorney present]. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.From which clause, you may ask, does the arch-textualist Antonin Scalia derive this 14-day rule? None. None at all. He pulls the 14-day period straight out of
The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.
In any event, if within the 14 days the suspect's lawyer hasn't instructed him on Popehat Rule #1, the lawyer should nevertheless have required her client to watch this video and its sequel.
Here's the take-away, the real rule that you should bear in mind if you are ever involved in an investigation of a crime:
Don't talk to the police. Ever. About anything.
This rule applies even if you know for sure that you're absolutely innocent and the only thing you're going to say is 100% exculpatory and no sane person could possibly interpret anything you say as incriminating in any manner and that nice, polite, courteous cop assures you that he just wants to "clear your name" so he can move on and look for the "real criminal."
Why? Nothing good* can possibly come of it.
You have a Constitutional right to not talk to the police. A right that you will benefit from exercising.
They'll have plenty of opportunity to gather other kinds of evidence to do their jobs without your assistance, don't you worry your pretty little head about that. A healthy distrust of those in positions of authority is a deeply American character trait, so don't be afraid to exercise your rights, especially this one. That right is there, after all, to protect the innocent.
And it's pretty safe to assume that the passage of fourteen days after you've invoked your rights will not cause the police to suddenly change their attitude towards you or the way they do business. So even if the Miranda rule does have a 14-day limit, Popehat Rule #1 does not.
* Nothing good for you, that is.
Hat tips to Orin Kerr, Web, and Ken.