What are Your Legal Rights?
There is a fine distinction about what your legal rights are and how you can use them depending on what kind of contact you have with the police. What is called a consensual encounter is when the police just come up to you or pass you on the street and start talking to you. A detention is when the police have reasonable suspicion to investigate a crime that has or might occur. This distinction is important because if the contact is consensual, the US Supreme Court says you do not have to say one word to the police … you can walk right on by. Although the better practice is probably to say, no thanks officer, I’d prefer not to stop and chat right now. The question you should ask yourself is, Do I feel that I can walk away from this police officer right now? If you can, it’s a consensual encounter. If not, you are detained.
Even if you are detained, keep in mind, the police DO NOT have to advise you of your rights unless and until you are in custody being interrogated. If you answer their questions while you are detained (or even if it’s merely a consensual encounter) your answers can be used against you even though the officer did not tell you this because he or she didn’t have to. That’s why it’s very important to know your legal rights.
You have the right to remain silent, always.
This means you do not have to talk to the police about anything. You do not have to answer their questions and you do not have to provide them with any information about what you saw or what you know or what you heard or what you did. You do have to identify yourself (name, date of birth, and request for an attorney) if they ask for that information, but you have no obligation to provide anything else.
Keep in mind the following information about your legal rights:
- Every time you talk to the police you give them the opportunity to say something you did not. I have seen “yes” become “no,” and “no” become “yes.” Even if they are taping the interview, you do not know if they are going to keep that tape or even what the condition of the recording will be. I have heard too many tapes which are of too poor quality to determine what was said, or have had cases where the tape “malfunctioned”. It then becomes your word against the police officer’s as to what your statement was.
- The cops do not remember what you say. What they remember is their interpretation of what you say based on their bias that has formed from talking to other people. Their memory may be poor since a report could be written several days after an interview. Their slant is usually very bad for a defendant since they see their job as convicting a defendant of as much as possible.
- The cops want you to talk about something you know nothing about–the law. For all you know, you may be admitting something that may be six times more serious than the cops could otherwise prove. Do you really expect the officer to say: “Oh, don’t tell me that, because that is really bad for you!”
- The cops do not have to tell you the truth. For all anyone knows everything they tell you can, and often is, a lie. A good one is that they are not going to arrest you. This promise usually only means right away, but later there will be an arrest.
- Finally, if the cops did not need something from you they would not waste their time talking to you. Do you really think the cops would stop by to have a beer and shoot the bull because they enjoyed talking to you?
It is your right to remain silent, which does not mean you tell the truth or a lie. This right means all you give the police is your name, date of birth and request for an attorney. It may be helpful at some point to talk to the police sometimes, but no statement should be given to the police under any circumstances without an attorney present (unless you are a victim reporting a crime.)
Anything you say can and will be used against you in a court of law.
See above. Even if the police say they won’t use something you say against you, they will.
There is no punishment for them for breaking their promise. There is no punishment for them lying to you to get you to answer their questions. Their purpose is to charge you with crimes and arrest you and use what you say to help prove their case against you. And a police officer’s promise is not binding on a prosecutor.
You have the right to attorney.
Always exercise this right. The law requires you to make a “clear and unequivocal” request for a lawyer. Do it. Nothing is more clear than “I want a lawyer.” Even if they tell you they are now charging you with a felony and they find it suspicious that you asked for a lawyer (this has happened before to many clients of mine), don’t make conversation with them. It’s good to be polite, but just be polite when you tell them you want a lawyer, and then don’t say anything else without a lawyer advising you.
If you can’t afford a lawyer, your legal right is that one will be appointed to you at little or no cost to you.
This is true, although you may not get that lawyer right away. If they say they are going to take you to jail unless you talk to them, let them take you to jail. You have a right to bail out and there are phone numbers of bail agents all over the place who would be happy to set you free.
If you can afford an attorney, and you know for certain that you are not going to jail right now, it is best to tell the police you are happy to cooperate with them and answer their questions, but only after consulting a lawyer. Your consultation with an attorney is private, and protected by the attorney-client privilege. A lawyer can advise you on how to proceed in the best legal way possible. The police cannot use the fact that you have requested a lawyer against you ever.
These rights are your rights regardless of whether you have been placed under arrest or not. The police only have to inform you of these rights when you are in custody and are being interrogated. See Miranda v. Arizona (1966) 384 U.S. 436. That means if the police suspect you are driving under the influence, for example, and they pull you over and start asking questions, they do not have to inform you of your right to an attorney. Until they tell you “you are under arrest” and then start asking you questions, your rights under Miranda have not been violated. Your answers to any questions can be used against you regardless of whether you were not told you have a right to remain silent. It is your responsibility to know your rights.
Exercising your legal rights does not help the police, but it does help you.
Citing Terry v. Ohio (1968) 392 U.S. 1, 32-33, 34, the supreme court said in Florida v. Royer (1983) 460 U.S. 491, 497-498: “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. … The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citation.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation.]”
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