Legal Questions? / Legal Answers!
The Miranda Rule
"You have the right to remain silent!
If you give up the right to remain silent, anything you say, can and will be used against you in a Court Of Law. You have the right to speak to an Attorney and to have an Attorney present before any questioning. If you so desire and cannot afford one, and Attorney can be appointed to you before any questioning.
Do you understand these rights as I have explained them to you?
Keeping these rights in mind, do you wish to talk to me now?"
I repeated this hundreds of times to everyone I arrested.
These are our 5th Amendment Rights, granted to us by the Constitution Of The United States.
Lets break each sentence down and explain what each one really means.
1. YOU HAVE THE RIGHT TO REMAIN SILENT - This means you do not have to answer any questions the police ask you about the Offense you may be charged with. Now I know you all know this. You see it on TV almost everyday. But I believe most just don't UNDERSTAND what it really means. Why do people feel the need to talk or "confess" while sitting in the back of a cruiser? Answering questions that will be used against them at a later date. Please understand, the Police are the State's witnesses. They testify to what they find, what they see and mostly....what you say!.
If your not drunk, my advice?..... SHUT UP!
The Fifth Amendment does not say explicitly that you have the right to remain silent! It says you do not have to be a witness against yourself. Remember that! Withholding information is not the same thing. If we had the Right To Remain Silent on everything, there would be no witnesses to help solve crimes!
"You can be asked for your name and date of birth by the Police. That information isn't going to be used against you. The Police will then run a check on you for any outstanding warrants. If they find any outstanding warrants you will be arrested. You should still chose to remain silent. If you have no warrants, then the decision to either arrest you for the charge you now are facing, or issuing you a summons becomes a bit easier for the Police to determine.
Remember, if you refuse to give your name or give a false name, you not only will be arrested until they can determine who you are, but you'll also be charged for giving false information to the Police."
Your Right To Remain Silent? What really happens if you say nothing at all?
Well first off, in all honesty... you'll probably upset the Police. They want "information" for their report. That report becomes a witness statement, which they give to the District Attorney to be used against you. They want to know what happened. Your refusal to "cooperate" with them, and actually use your Right To Remain Silent, may make them a bit upset. How upset could they get? My experience has shown me that the "how upset" situation, usually is determined by the Officer and his "view" of the law and your rights.
But I can tell you what they can do if they do get upset. see: Powers Of Police, DA & Judge.
No matter what position you chose to take, always remember, "It is your right to say nothing at all. To make the Police do their job and gather the evidence against you, ...without helping them to do so!"
If you chose to use your Right To Remain Silent, you will either get summonsed to court and giving a court date to answer to the charge(s) against you or they will take you to jail.
"I Just Got Arrested And Taken To Jail, Now What?"
If during your detainment, the Police find an outstanding warrant against you, or if they decide to arrest you on the charge they stopped you for, you will be locked up until a bail amount is determined by the Bail Commissioner. see: Bail Commissioner / Bail Conditions.
If the out standing warrant is for failure to pay a fine, the Bail Commissioner usually sets the bail amount, the same amount as the unpaid fine that was due. He will also add his "commission" fee to that total as well. If the outstanding warrant(s) is for serious charges, you may not be offered bail at all. In the event you are not offered bail, you will remain in jail until you are placed in front of a judge. Usually within 48 hours, but if your jailed on a Friday night, plan on being in jail at least until court opens on a Monday. Remember, if Monday is a legal holiday, court will be closed until Tuesday.
Now, lets say you have no outstanding warrants, but the Officer insists on arresting you for the charge he stopped you for.
You will then be processed for what ever offense you committed and you may also be charged with what I like to call a few "dropped anyway" offenses Now when I say "dropped anyway" charges, I mean the "other" charges that may be added to your original charge but will probably be "dropped anyway" Offenses added that might help the Police "convince" you to "cooperate" and answer their questions. Of course, once your Rights have been given to you. They can start asking questions. Perhaps hoping you'll re-think your Right To Remain Silent. Always say nothing. In fact, I would suggest telling them your Attorney has already told you, to always remain silent and you wish to do so. The more charges you help them issue against you, ( and believe me, they don't need any help in this dept ) are more charges that can be "dropped" or used as a plea bargain tool for the District Attorney. They can attempt to use them, to get you to take their "recommendation" to the Court, of a fine, jail, or probation.
The bad part is, the charge(s) against you will determine how much bail is needed to get you out of jail. Even if some of the charges are dropped later on.
I didn't say this was easy,
Remember to keep your anger in check as well!
The Police can still mess with you and throw you in jail for "any related charge(s)". Sure the charge(s) may get dropped after you meet with the District Attorney to discuss their plea arrangement that they want to "offer" you. See: Powers Of Police, DA & Judge. But, they still used their "power" to mess up your day.
2. IF YOU GIVE UP THE RIGHT TO REMAIN SILENT, ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW! - Anything you say! In the back of the cruiser, in the holding pen, in the bathroom, to another person in the same cell. If they hear it, or hear of it, it goes on a report and the D. A. gets it as "evidence" to use against you.
I have seen some cases won by the District Attorney based solely on the arrested person's "willingness" to tell their side of the story to the Police. Giving the District Attorney all the information they needed to prosecute them and win the State's case. See: Witnesses, Yours, Mine & Ours.
Keep in mind the Police love to play Good Cop, Bad Cop as well. The Bad Cop who just put the cuffs on you and threw you in the back of the cruiser. Who barks out statements that might make you mad enough to say something, Who threatens you with more charges. Then there is the "Good Cop". The one who showed up to help the first Officer. The one who "understands" your situation. He'll understand what you did, after all "people make mistakes, doesn't mean your a criminal." Go ahead and talk out loud if you'd like, he'll understand it all without asking you questions or abusing your rights.
Then he'll write everything down in a report and become a witness against you for the State. If he didn't ask you any questions relating to your charges, and you "offered" them, he didn't abuse your right
"If you were not read your rights, an Attorney can and should file a "Motion to Suppress" This needs to be done within 21 days of your plea before the Judge. If the Motion to Suppress is granted by the Judge, all statements you had made to the Police, at the time of the alleged incident... and that the District Attorney is planning to use against you, should be dismissed or thrown out."
3. YOU HAVE A RIGHT TO SPEAK TO AN ATTORNEY AND TO HAVE AN ATTORNEY PRESENT BEFORE ANY QUESTIONING BEGINS. - OK. This is the tricky part. If you have an Attorney in your wallet, call them. If you already have an Attorney I am sure you already have been told to keep quiet.
If you don't have an Attorney, this statements means if you chose to exercise this right, you will now be arrested or summonsed to court.
If your summonsed to court, you'll be given a date to show up to court to enter a plea of Guilty or Not Guilty to the charge or charges against you.
If your arrested, you will then be taken to jail, fingerprinted, and placed in a holding cell until the Bail Commissioner see: Bail Commissioner / Bail Conditions.- comes in to tell you how much money you need to bail yourself out.
"It has been my experience with the Police that they will attempt to get you to talk, anyway they can. They may not directly ask you something to do with your situation. But they are very clever as to how they get their information. They know that most people do not "retain" Attorneys and do not know their rights. I read the Miranda Rights every single time I arrested someone. Most everyone I arrested gave up their right to remain silent and lost their "case." I used the Store Detective who worked for me and the the Good Cop, Bad Cop routine allot because... It worked."
"If you have been arrested and you want to use your Right To Remain Silent without an attempt by the Police to lets say..."adjust" it" I might suggest letting out the fact that you have your Attorney's card in your wallet and you'll probably ask him to bail you out. Of course if you don't really have an Attorney. If you don't really have a card. It doesn't matter. Once you mention an Attorney, most Officers will back off on trying to get "answers" out of you. They just have to hear the statement."
4. IF YOU SO DESIRE BUT CANNOT AFFORD ONE, AN ATTORNEY CAN BE APPOINTED TO YOU WITHOUT CHARGE AND BEFORE ANY QUESTIONING. - Here is the problem with this statement. If you don't have an Attorney in your wallet you won't be able to apply for one through the court, until your first appearance in court. At that time, you will plead Guilty or Not Guilty. If you plead Not Guilty see: Asking For Discovery. and cannot afford an Attorney, you should also ask the judge if you can apply for a State Appointed Attorney. The Bailiff will then give you the Financial Disclosure Documents to fill out. On these documents you will list your debts and assets and that will determine if you qualify for a State Appointed Attorney. The Bailiff should also tell you what time the Financial Screener is in, so you'll know when you can apply. Based on your ability to pay, it will be determined if you qualify for a court appointed Attorney and a decision will be mailed to you. If you do qualify, you most likely will receive the name of the Court Appointed Attorney with instructions to call their office and set up your first appointment. Remember, there are time limits on filing legal paperwork so you will want to do this the very same day you receive that notice!
Keep in mind the court system is not set up to lose. Understanding your rights doesn't guarantee you will win your case. We all have friends, if not ourselves, who have pled guilty or taken a plea agreement with the State for a violation they didn't believe they did. Just to save themselves the time and money of court. Maybe they have been out on bail and just want it to be over. The bail money can be used for the fine...even better.
"We all know someone who has allowed the State their "victory." Just to save time and money ....and to put an end to losing work."
What remains important are really only a few questions that we need to ask ourselves.
1. Can you handle the aggravation of jail, court & losing money to prove your innocent?"
2. Is the charge against you substantial enough to fight?"
3. Do you believe the State has enough evidence to get a conviction?
4. Can you plead the charge down to a lesser charge?
Whatever direction you chose to take, I hope you always use your Right To Remain Silent.
My Final Thought...
"It is not my intention to help anyone
get away with breaking the law. My intention
is to remind you and help you to understand
what your rights mean. I am sure at times
that my words sound like I have a resentment
towards the Police. I would like to say in
my defense, that just isn't true. I have
met both fair and honest Police Officers
and a few not so fair and honest Police Officers.
I had one Officer show his respect of the
Law by shaking my hand after I had disproved
his claim that I had run a stop sign. Police
Officers who respect the law and your rights
are still out there, But so aren't the one's
who will also step on your rights if it's
"within the law". In this age of
cell phone videos, and dashboard cameras
it happens less."
"But do not kid yourself, ....it still happens.