Last Updated on Monday, 23 August 2010 18:18 Written by Mace Yampolsky Wednesday, 18 August 2010 17:12
If you are arrested or taken to a police station, you have the right to remain silent.
Take my advice: Be sure to specifically tell police you want to talk to a lawyer and want to remain silent.
In a 5-4 ruling in Bergius v. Tompkins, the U.S. Supreme Court recently weakened long-standing protections against coercive police interrogations. Miranda warnings inform people who have been arrested of their rights to remain silent and to consult with an attorney.
But now anyone who is arrested must speak up to stop an interrogation once they have been informed of their rights. Otherwise, according to the Supreme Court ruling, the questioning can go on for hours and any statement you make can be used against you in court. But if you say you want to speak with a lawyer or to remain silent, the police must immediately stop interrogating you. The Court considered the position of a suspect who understands his or her [rights] under the Miranda case right to remain silent and is aware he or she has the right to remain silent, but does not explicitly invoke or waive the right. The Court held that unless and until the suspect actually stated that he was relying on that right, his subsequent voluntary statements could be used in court and police could continue to interact with (or question) him. The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his or her rights. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.
The court was narrowly split on the decision (5-4), the dissent saying that Miranda and other previous cases required a claimed waiver of a constitutional right to be shown more strongly, especially in light of a lengthy interrogation with a possible “compelling influence” during which the accused had remained almost entirely silent for almost 3 hours prior to the self-incriminating statement.
I am really concerned because this is a further erosion of Miranda and “turning the clocks back” on safeguards developed in previous cases. Because vulnerable citizens could now be placed under pressure and, despite having an understanding of their rights, could be more easily coerced prejudicial to their interests.
You may think, so what? If they didn't do anything, what is the problem? Well, the problem is that relentless questioning by police officers schooled in interrogation techniques can wear people down and coerce false confessions. The suspects simply want things to end so they will admit anything. It's like a bear that is caught in a trap and will do anything to escape. I recently attended a seminar in Toronto on wrongful convictions. Several lectures addressed overbearing, relentless questioning and people confessing to crimes that DNA proved they did not commit.
The ACLU has prepared a one-page guide to encounters with law enforcement.
It says in pertinent part:
If you are stopped for questioning, DO...
-DO give your name and the information on your drivers' license. If you don't, you may be arrested, even though the arrest may be illegal.
-DO remember you have the right to remain silent. You cannot be arrested or detained for refusing to answer questions. But it can look suspicious to the police.
-DO show an ID if you are getting a ticket so that you can be released.
-DO ask the police to see a search warrant if they want to search you or your home.
-DO make sure the officer knows you do not agree to be searched (they might search you anyway, but make your opposition known. You can say “I do not consent to a search”).
-DO ask if you are free to leave. If they say 'yes,' leave; if they say 'no,' DO ask to know why.
If you are stopped for questioning, DON'T...
-DON'T disrespect a police officer. Although you have a Constitutional First Amendment right to do so, it could lead to your arrest.
-DON'T refuse to give your name; you could be arrested.
-DON'T agree to be arrested if you don't know why. If you are arrested anyway...
-DON'T run away or physically resist a “pat-down” or search. The police can pat you down if they suspect you are carrying a weapon, but you can ask why you are being detained or arrested.
-DON'T lie. Don't talk if you don't have anything to say. Tell the police you don't want to talk to them; you do not have to give additional information besides your name and basic identifying information.
-DON'T discuss your citizenship or immigration status with anyone other than your lawyer.
If you are arrested or taken to a police station, DO...
-DO tell the police your name and basic identifying information. BUT NOTHING ELSE.
-DO tell the police you want to remain silent and want to talk to a lawyer. They should stop questioning you after that.
-DO ask if you can park your car in a safe place or have a licensed driver take it away, to avoid towing or impoundment fees.
-DO make sure you get your 3 phone calls within 3 hours of getting arrested or immediately after being booked. You can call a lawyer, bail bondsman, relative, or any other person. If you have children under 18, you get 2 additional calls to arrange childcare.
-DO memorize phone numbers for three family members or friends who you can call.
-DO assume the police are recording your calls (except the call with your lawyer).
If you are arrested or taken to a police station, DON'T...
-DON'T give them any information except for your name and basic identifying information.
-DON'T give explanations, excuses, or stories.
-DON'T talk to the police about the situation without your lawyer.
-DON'T talk about your case on the phone; the police might be recording your 3 allotted phone calls (except those to your lawyer).
-DON'T forget the fact that if you cannot afford an attorney, one must be provided free of charge for you in court, if you are facing jail time.
-DON'T make any decisions in your case without talking to a lawyer.
-DON'T explain your defense in the police station. Do it in court, once you talk to your lawyer.
-DON'T discuss your citizenship or immigration status with anyone other than your lawyer.
If you are stopped in your car, DO...
-DO Provide your license, registration, and proof of insurance when asked (you have to if you're stopped while driving).
-DO keep your hands on the wheel and let the officer know what you are doing (“I'm going to reach for my registration now, officer...”).
-DO make it clear that you do not agree to have your car searched (they may do it anyway if they suspect you have contraband or evidence).
-DO sign your ticket if you are given one. Otherwise, you may be arrested. Your signature only means you agree to go to court; you can always fight the case in court later. If given a ticket, do contact the court by the date written on the ticket; failure to appear may lead to arrest and a suspended license.
-DO take the blood, urine, or breath test, unless you are willing to risk your license being suspended.
-DO keep your car interior clear of unnecessary objects. It may give the police reason to search the car.
If you are stopped in your car, DON'T...
-DON'T physically resist a search, but make it clear you DO NOT AGREE TO A SEARCH (this may protect you in court later).
-DON'T refuse to sign a ticket. You can be arrested for it.
-DON'T search for your license or registration until asked. It may look as if you are trying to hide something.
-DON'T refuse a blood, urine, or breath test unless you want your license suspended.
-DON'T disrespect the officer. Although you have a Constitutional First Amendment right to do so, it could lead to your arrest.
-DON'T attempt to bribe the police.
-DON'T play music loudly when the police walk up to your car. -DON'T have any objects hanging from your rearview mirror. It may provide a pretext to pull you over.
Whether you are released or remain in jail, once given a court date, DO...
-DO remember that you have the right to an attorney and one must be provided to you free of charge, if you are facing jail time.
-DO ask the judge if you can be released without bail (on O.R.) or have the bail lowered.
This is excellent advice. You may want to download these tips from the ACLU and carry them with you at all times. When you are traveling in Arizona and the police say “Papers please,” show them this document. Resist this incursion against your individual rights. Remember, either use them or lose them. In the immortal words of Benjamin Franklin: 'We need to hang together or most assuredly we will hang separately.” As always, be afraid! Be very afraid! -Mace