The line is from the wedding ceremony. In criminal law we have a variant of it: the right to remain silent. And the right to speak — but only with a lawyer. The choice between the two decides the fate of quite a few criminal proceedings.
The most common mistake of my clients in the first interrogation is not lying. It is — talking. Almost everyone who has just received a letter from the police wants to "clear things up". "Explain the misunderstanding." "Clarify the situation." The police are pleased to oblige. The interrogation is recorded, the statement transcribed, the transcript signed. Six weeks later, the statement sits in the file — and the defence lawyer, who is only now being engaged, is left with twenty pages of raw material for the prosecution.
Sections 55 and 136 of the Code of Criminal Procedure are, in essence, the two promises the state has made to anyone under investigation: you do not have to incriminate yourself, and the investigators must make that clear to you. The "cautions" we know from American films are not purely cinema; Germany has its equivalent. What the films don't show is how easily the caution slips past the ear of someone who is nervous, tired, has been at the door for three minutes and is being asked, kindly, whether they might like to clarify the situation. Yes, they reply. And then the trouble begins.
My number-one piece of advice for clients who have just been contacted by the police is: say one sentence, and that sentence is, "I would like to invoke my right to remain silent until I have had the chance to consult a lawyer." That sentence is allowed; it is sometimes even met with sympathy on the other side of the table. It does not make anyone guilty. It does not "look worse". It simply creates time. And in criminal law, time is the most precious resource for the defence. Every hour in which you have not made a statement is an hour in which we — your counsel — can look at the evidence, consider the case, and tell you what you should actually say, and when.
Of course, I also meet clients who take that advice too well. They do not say a single word for the entire preliminary proceedings. They do not say a word at the trial. And sometimes that is the right tactic. Often, however, there comes a moment when, on our advice, a carefully drafted written statement of the defence is filed, answering key questions of the prosecution in a way that the client never could have produced in a spontaneous interrogation. The sentence is not: "Stay silent forever." The sentence is: "Stay silent, until the right moment."
The right moment almost never comes in the hallway at a police station. It almost never comes via text message with the officer who has been "putting so much effort into your case". It comes in a room in which a lawyer, who has read the file, sits next to you. Because only from that point on is what you say advice in your own interest, rather than an investigator's opening move.
Three percent of German criminal proceedings end in acquittal. Three percent. The remaining 97 percent reach some less favourable outcome for the accused. Those are statistics that every layperson should bear in mind before they enter an interrogation room with the feeling that they will easily clear this up. They will not. And nobody, honestly, expects them to.
Speak now — with a lawyer. Or, for as long as needed, forever hold your peace.