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Know Your Rights!

In 1963, the United States Supreme Court decided the case of Miranda v. Arizona. In that landmark ruling, the Supreme Court engraved into law four of the most critical rights provided to criminal suspects by the U.S. Constitution; those protections apply to state and Federal courts across the nation, and in every federal territory. Those rights are as follows:

  1. You have the right to remain silent. You do not have to answer the questions of police.
  2. If you do give up the right to remain silent, anything you say can and will be used against you in a court of law.
  3. You have the right to the assistance of an attorney, before, during, and after questioning.
  4. If you cannot afford an attorney, one will be appointed for you at no charge.

We’ve all heard them before on TV or in the movies. By now you can probably recite them by heart, right?

Well, thanks to the myth-making of Hollywood, many people believe that Miranda requires the rights to be read whenever the police make an arrest. This is not correct. The rights must be read only if: 1) the person is in custody (in other words, is not free to leave the police and go about his business, whether or not there has been a formal arrest), and 2) if the police intend to question him about the crime itself.

Miranda does not apply when the police ask only for basic background information, such as name, age, date of birth, and the like. Also, if the police have sufficient probable cause based on other evidence, they may elect not to question the subject, and Miranda warnings are not required. This is common in drug possession or theft crimes, where the probable cause is based simply on the drugs or stolen property being found on or near the suspect’s person.

Courts often have to decide whether, in a given case, a Miranda violation has occurred; and the law on the subject is constantly being refined. For example, the Supreme Court has held that, to exercise your right to remain silent, you must clearly tell the police that you do not wish to speak. If you merely remain mute, the cops can continue questioning you, and if you then give an incriminating statement, the courts will likely find the statement admissible.

Another example: If you wish to exercise your right to an attorney, you must say so, clearly and deliberately. You cannot say something vague or equivocal, like, “I wonder if I need a lawyer,” or “Do you think I should get a lawyer?” Those expressions are not definite enough—and, as you can imagine, no police officer will ever encourage you to contact one. But if you simply and firmly say, “I want a lawyer,” “I’m not going to talk any more without my attorney,” or something similar, the police are required, under Edwards v. Arizona, to immediately cease questioning until a lawyer is provided.

Or if you are given a written Miranda warning form, you may see a question at the end similar to this: “Knowing your rights, are you now willing to talk to me without a lawyer present?” You should always mark the block for “No.”

YOU SHOULD NEVER–EVER!!–TRY TO TALK YOUR WAY OUT OF GETTING ARRESTED. This cannot be overstated. The police are much too skilled in the art of interrogation; it’s what they’re trained to do. The detective sitting across the table will likely have years of experience in extracting confessions, sometimes to crimes which the subject never committed. Any subject should assume that the police are already convinced of his or her guilt; their questions will be designed, not to get to the truth, but to convince the subject to confirm their suspicions.

Also, while the police are not permitted to use physical or mental force or coercion to secure a statement, the law often allows them to use deception or trickery (such as telling the suspect that his fingerprints were found at a crime scene, or that certain witnesses have identified him, when neither one is actually true). A suspect who tries to answer such statements or explain such items without a lawyer present does so at his or her own extreme risk.

It’s not your job, or your loved one’s job, to deal with the police in this kind of situation. That is the job of a skilled, dedicated defense attorney. With over 30 years of experience in the criminal justice system, Tony Moss is more than prepared to take on the task. Just call him at 877-547-9407, or e-mail him at Tony@TonyMossLaw.com.

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