Last Updated on: 20th October 2023, 09:09 am

Can the FBI Question You Without an Attorney Present? What to Know

Getting questioned by the FBI can be an intimidating and stressful experience. Many people wonder if they are allowed to have a lawyer present during an FBI interview. The short answer is yes – you have the right to have an attorney present if the FBI wants to ask you questions. However, there are some important things to understand about your rights and how to exercise them properly.

Your Fifth Amendment Rights

The Fifth Amendment to the U.S. Constitution states that no one “shall be compelled in any criminal case to be a witness against himself.”¹ This means that you have the right not to incriminate yourself by answering questions that could implicate you in criminal activity. In addition, the Supreme Court has ruled that the Fifth Amendment means you have a right to have an attorney present during custodial interrogation.² If the FBI wants to question you while you are in custody, such as under arrest or not free to leave, then you have a right to have your lawyer with you.

Non-Custodial Interviews

However, many FBI interviews are non-custodial, meaning you are not under arrest and free to leave at any time. In these situations, your right to have an attorney present is more limited. The FBI does not have to allow your attorney to sit in during a voluntary, non-custodial interview. If you request a lawyer, the FBI agents can choose to either allow it or end the questioning and ask you to leave. They cannot arrest you simply for refusing to answer questions without a lawyer present in a non-custodial setting.³

That said, it is generally advisable to have an attorney with you during any law enforcement questioning, even if non-custodial. Your lawyer can help ensure your rights are protected, object if the agents ask inappropriate questions, and clarify anything you say to avoid unintentionally incriminating yourself. The agents may still ask you to leave if you insist on having your attorney present, but they cannot legally punish you for exercising your Fifth Amendment right in a non-custodial interview.

Asking For a Lawyer

If you do wish to have an attorney present during FBI questioning, you must clearly and unequivocally state your request. You have to say something along the lines of “I cannot answer any questions without a lawyer present.” If you are not completely clear in your request, the agents may try to keep asking you questions without providing a lawyer.⁴ Simply remaining silent or expressing uncertainty about wanting an attorney is generally not enough to invoke your Fifth Amendment right to counsel.

In addition, you must make your request for an attorney as soon as the questioning begins. If you start answering questions first without asking for a lawyer, the FBI agents do not necessarily have to stop the interview if you later change your mind and ask for counsel. Once you begin voluntarily talking, you may have unintentionally waived your right to then invoke your Fifth Amendment protections.⁵

When the FBI Contacts You

If an FBI agent shows up at your home or workplace looking to question you, think carefully before agreeing to speak with them. Politely state that you need to consult with an attorney before answering any substantive questions. Get the agent’s contact information so your lawyer can reach out and determine if an interview is advisable and if so, under what conditions.

The FBI may try to convince you that having a lawyer will only make you look guilty or that they just need a few quick answers. But don’t let them pressure you into a conversation without counsel present. Invoke your Fifth Amendment right clearly and promptly.

During the Interview

If you do proceed with an FBI interview with your attorney present, keep the following tips in mind:

• Be truthful – it’s a crime to make false statements to federal agents.
• Keep your answers short, simple and direct.
• Don’t speculate or guess at answers if you don’t know for sure.
• Don’t answer questions that your lawyer advises you not to answer.
• Don’t lose your cool – stay calm and polite.

Having an attorney helps ensure that your rights are protected. But you still need to choose your words very carefully. Don’t say anything that could unintentionally give the FBI agents more ammunition to use against you.

If You Can’t Afford a Lawyer

The right to an attorney does not necessarily mean you can have any lawyer you want. If you cannot afford to hire private counsel, the FBI is only required to provide you with a public defender or court-appointed lawyer if you are actually under arrest or indicted on charges. If it’s just a voluntary, non-custodial interview, the FBI does not have to ensure representation for you if you ask for a lawyer but don’t have one.

That said, most federal public defender’s offices are still willing to consult with people asked to participate in voluntary FBI interviews, even if they don’t ultimately provide full representation. Call the federal public defender in your area for assistance if the FBI wants to question you but you can’t afford a private defense lawyer.

The Bottom Line

Dealing with the FBI can be intimidating, but knowing your rights is key. While the FBI does not necessarily have to allow an attorney during voluntary non-custodial interviews, it is wise to have counsel present anytime federal agents want to question you. Be sure to clearly invoke your Fifth Amendment right to an attorney early in the process. With a lawyer’s help, you can avoid incriminating yourself and minimize legal exposure.

References

1. https://www.law.cornell.edu/constitution/fifth_amendment ↩

2. https://www.oyez.org/cases/1963/770 ↩

3. https://www.justice.gov/jm/criminal-resource-manual-645-invocation-right-counsel-noncustodial-interviews ↩

4. https://www.nolo.com/legal-encyclopedia/when-fbi-wants-talk-you.html ↩

5. https://www.justice.gov/jm/criminal-resource-manual-642-invocation-right-counsel ↩