Rights You Should Invoke When Being Questioned
By Dan Noll on August 1st, 2016 in Articles, Criminal Defense, Criminal Defense Lawyer, Self-Defense
One of the real questions that we have, and we advise clients about this all the time: What do I do when I’m going to be first questioned by a police officer on any particular issue?
I suppose you have to take a step back and think to yourself: Am I a target of this investigation? Or am I just providing information? “Yes, I know Bill Smith or John Jones or Mary Jackson or whatever might be.” That’s one thing. Or do you know where the money went on this check that’s made out to you and it’s endorsed by you? You all of a sudden realize, “I may be the target of this investigation.” The question is: What do you say to people at any particular time, people being police officers who may arrest you?
Most often, you see it on DUI cases. When you get stopped for DUI, the officer says, “Have you been drinking tonight?” Don’t lie to the officer. That would be obstruction of justice. What you say to the officer is absolutely nothing. “Officer, I’m not going to answer the question.” Don’t answer or talk to any police officer who is going to target you for an offense. We say that because that’s one of your Constitutional rights.
I’m not trying to have you avoid justice or evade justice. What we’re saying is that there’s certain Constitutional rights you have. Exercise those rights. Know what those rights are. You have the right to remain silent. Remain silent. It doesn’t say advise the officer something differently. You have a right to a fair trial. That’s fine.
If you look at trials that take place, we’re talking about contested trials where people go to court and have their guilt or innocence decided by a jury, 92 percent of all those cases have some type of statement that gets interests or a confession by the defendant that the prosecution presents. If they have that, generally, they’re going to get a conviction, because what better admission than somebody themselves? Quite often, the people don’t know what they’re saying to the police officers, they don’t quite understand the impact of it, but the police officers do.
Are we saying obstruct justice? Not at all. But you have certain rights. Exercise those rights, and make sure that, before you answer any questions, number one, you understand you’re not a target for the investigation, number two, answer them truthfully, because I can not tell you … Let’s talk about Martha Stewart for a second. What was she convicted of? Martha Stewart was convicted of obstruction of justice, not for what she did in terms of moneys that were insider trading. That’s the basic charge that came. Not a thing, even though she made hundreds of thousands of dollars by virtue of the insider trading. What she got convicted for was lying to the police officers when they came and talked to her. Don’t lie to them! Just remain silent. You have no problem with that.
Any time an officer puts you in a position where you think you’re a target for an investigation or they read your rights, listen to those rights. Let me hit them briefly. Number one: “I demand to have an attorney present before I speak with you.” You should have your attorney there. Call our office. We’ll tell you what to do. “I will not talk to you or anybody about this thing.” Don’t talk to them. “I will not answer any questions or reply to your questions that you tender to me.” Do that.
“I do not agree to perform any test, allow my property to be searched, or participate in a line-up.” Quite often, when an officer stops a car, they’re going to say, “Can we have permission to search your car? Do you mind if we do that?” Most people think, “Man, if I don’t give them permission, they’re going to think I’m guilty.” Well, let me tell you: You give them permission, you’re going to be found guilty because there’s going to be something in the car.
Let me tell you an example I have. A good friend of mine had nothing to concern himself with, got stopped 10:00 in the morning in a small town nearby, and he allowed the officers to search the car. The officer opened the back seat of the car, or the back door of the car, in the back seat, and out came a beer can. Well, our client had not been drinking. He didn’t know where the beer can came from. His kids, had been college kids, had been in the car previously. He had no idea there was a beer can there, so he got charged with DUI. It took us a ton of time and a lot of litigation and a lot of money on his expense to get him acquitted on that, and we did.
But, nonetheless, my point to you is: Allow no one to talk to you, allow no one to search anything you have, allow no one, but, if the police give you an order, you follow it. Make sure you’re always in front of the police car, because that can show you what you’re doing and what they’ve said.
Now, I’d say that 99.9 percent of all police officers are really good people. They’re just doing their duty. However, they’ll do their duty to the extent that you waive your rights. Don’t waive any rights. Don’t allow any searches. Don’t allow any discussions. Don’t allow yourself to answer any questions. If you’re in the position where you could get hurt, 99 percent of the time defendants convict themselves because of what they said and what they did in compliance with the police officers. Just say, “Officer, with all due respect, I’m not going to say anything. I’m not going to do anything.” Take that as a gospel. Otherwise, you’re going to end up in a situation where you’re in court, and they’re going to play a video about what you admitted to and what you consented to. Good advice. Thanks.