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.
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