Picture of <span>Suguru Takano</span>
Suguru Takano

Lawyers who cannot achieve silence

In my last article, I considered the reasons why lawyers do not advise silence. This is a continuation of that article.
“I am convinced that silence is the best policy.” (That alone is already great.) “However, no matter how many times I repeatedly advise my clients to remain silent, they still ended up talking during the interrogation.” Many lawyers face this situation. So why can’t we make our clients remain silent?

In Japan, an interrogation does not end when you state that you will exercise your right to remain silent. “Why do you remain silent?” “You were talking to me yesterday.” “I don’t know what your lawyer told you, but it doesn’t look good.” “I thought you teach your children to be honest about what they’ve done.” “With that attitude, even if you could go home, would you still be able to hug your kids with a clear conscience?” These were the outbursts that police officers have in the past hurled at my clients who have remained silent. Such interrogations are illegal and should never be allowed. Unfortunately, it is not an uncommon occurrence. And our clients will continue to be subjected to such verbal abuse. Any lawyer who decides that silence is the best policy must advise his or her client to still remain silent in light of the fact that such interrogations will take place.

For those who have not yet been advised to remain silent or those who have been advised but could not remain silent to the end, it may seem difficult to achieve silence. You may think that only special people, such as people in antisocial organizations, can achieve it. However, this is not true. Even those who have been involved in an incident and arrested for the first time, and who have never had any brushes with the police before, can remain silent with proper advice.
When I first became a lawyer, I was sometimes unable to make some clients remain silent. However, through repeatedly giving advice, I came to realize what was most important to convey to my clients. After realizing this, I rarely had a client break his/her silence in the middle of a case.

Bar associations and other organizations also provide training on achieving silence. I believe that in such training lawyers are taught “to brief their clients in advance what the investigative authorities will say (such as the above-mentioned outbursts),” and “to conduct mock interrogations with clients to rehearse exercising the right to remain silent.” These training are very important. By informing the clients of the above verbalizations ahead of time, you can greatly reduce the amount of their upset during the interrogation. A client does not know what to do if he or she is just told by the lawyer to “remain silent.” I always tell them the above when advising them to remain silent.
However, this alone is not sufficient to achieve silence. What is most important is that the client himself or herself understands and accepts why silence is the best response. No matter how much the clients are taught on how to remain silent, if they are not convinced that it is the best course of action, they will not be able to withstand the relentless interrogation by the investigative authorities. Often the prosecutor will say, “It’s your right to remain silent, and that’s fine. Your lawyer may be advising you to do so. But do you yourself really think it is okay to remain silent? In the end, you are the one who decides whether or not to exercise your right to remain silent.” At this point, if the client himself or herself is not convinced about the policy of silence, it will be difficult for him or her to continue his attitude of silence.

So, if it is important that the client is convinced about the policy of silence, what should the lawyer tell him or her? This is not difficult. The lawyer should explain in simple terms why he or she thinks it is best to remain silent. The lawyer must have weighed the advantages and disadvantages of remaining silent (i.e., the advantages of giving a statement), and because he or she considers the advantages are greater, he or she is advising silence. It is sufficient to explain clearly what the advantages and disadvantages are and why the advantages of silence outweigh the disadvantages. Most clients will understand and agree.

I am not going to say that this is the only absolute right answer to achieve silence. However, it is certainly one of the most important factors to enable clients to remain silent. In order to obtain an indictment, and in order to obtain an acquittal or reduce the penalty at trial, silence is one of the most effective tools available. For criminal defense attorneys, the technique of achieving silence is essential.