We have all seen the television version of this circumstance. The hero detective has the perp in his sights but has no evidence to arrest him. He goes out to “talk” to him but the “perp” refuses. Then he pulls out the big gun, talk to me now or talk to me “downtown”.
The perp folds and gives the hero detective all he needs to arrest him and they go “downtown”.
Of course the reality is the “perp” is a citizen who the “hero” has targeted and uses his superior knowledge of the legal system to make the arrest. It is a standard writer’s device to advance the story line, but unfortunately it is all too real.
The mistake the citizen makes is that this is a “level field” and the officer is going to make it better, if he just “co-operates”.
If the officer has no arrest warrant or probable cause to make an on-scene arrest, then there is no trip “downtown”. Any suggestion of such a trip should be met with a let me call my lawyer first reply.
Should you find yourself under arrest for an offense and being interrogated for the offense, your only response should be exercising your right to have counsel present.
Television (cop shows) have turned this Constitutional Right into a dispicable act. How dare this citizen, “lawyer up”! But it is exactly what you should do. If there is no problem with the police interrogation, why would they object to having someone there who is representing only your interests. The police do not represent you, their interest is in closing the case by making an arrest. The prosecutor is not representing your interests he is representing Government. (Some victims think the prosecutor represents them, this is not so; the victim is merely a witness for the Government).
If you are asked to “go downtown” decline. If you are confronted with threats, even subtle ones, for refusing then you definitely need to have a lawyer on your side of this “conversation”.
As was said in the last blog, Miranda is important. It is a right that should never be casually discarded in the hope that you can cooperate yourself out of trouble.
Interrogations are no longer called such, now they are interviews. The police are taught very sophisticated methods of getting the responses they want from anyone. Yes, from anyone. This is not the time to go it alone and hope for the best, your freedom is at stake, maybe for 20-30 years.
The trip “downtown”
January 6th, 2010Arrest and right to silence
December 22nd, 2009You have an encounter with the police and they want to ask you questions about an alleged criminal event. The first question is whether or not you are under arrest. If you are formally under arrest, the police must advise you of your Miranda right, just like y0u see on television. If you have not been formally arrested you will not be advised of these rights, BUT your answers will be usable against you. Over the next weeks and months we will be discussing the various problems citizens encounter when they are the subject of a police interrogation, or as it is now called an “interview”. Your rights will change depending on particular circumstances and the shades of gray will be developed to make you a more informed citizen.
The first determination you must make is your legal status. Often the police, and this is true whether they are your local police department or a Federal agent such as the DEA, ATF or FBI, will not initially provide you the magic words, “You are under arrest.” It is more likely that you will be encouraged to cooperate, to consent, to voluntarily answer their questions. It is important that you understand these questions are designed to result in an arrest and prosecution, maybe yours. You have no legal duty to answer any questions put to you by the police, which go to the substance of any alleged criminal conduct.
It is common for law enforcement to bait citizens with the “if you have nothing to hide” or “innocent people cooperate” enticements. Your Constitutional right to remain silent says nothing about being only available to the guilty it says that all citizens enjoy this right. It should not be given up just because the police want you to. There is absolutely no punishment or criminal offense for exercising this right. The fact that you exercised your right to remain silent cannot be used against you at trial. Sometimes remaining silent may even prevent you from being charged. I have told clients repeatedly, at the time of your first contact with law enforcement, if you are the target, ”You CANNOT cooperate yourself out of trouble.” Any statement you made can be expected to be used against you.
On the otherside of the coin is the decision to talk to the law enforcement officers. I recommend that this only be done with competent counsel present, another right which will be discussed separately. Any decision to talk to law enforcement must be truthful and there are dangers of failure to disclose in a Federal prosecution setting. Many people have been prosecuted for problems with the statements made to Federal investigators when they were not charged with the offense being investigated.
Always consult competent counsel before making any statement which could form the basis of a criminal charge against you. Your Constitutional Rights are a USE or LOSE proposition. If you do not exercise them, it is likely that you will be found by the Court to have waived them.