Why You Never Waive Your Right to Remain Silent!
A Special Report by PAUL D. CRAMM, Esq.
Time: Monday, 9:15 a.m.
To: All Clients, Friends and Family
From: Paul D. Cramm
Re: Know Your Rights!
The other weekend, I was going through many of my closed criminal files, deciding which ones were ready to send to storage. This is a time consuming task that every lawyer undertakes at least a couple of times each year. It’s a nice time to reflect on how many people you have been able to help.
I am glad to say that as I looked at the names on the folders, I could easily recall the client, his or her face, the nature of the charge, and how the case turned out. What really struck me about many of the cases I have handled was how my defense strategy and my client’s options were decided during the post-arrest interview, before I had even entered my appearance in the case!
Important Point Number 1: Do not limit your options or the strategies available to your attorney before you’ve even made that first call from the police station!
“You Have the Right to Remain Silent…”
We’ve all heard that before, at least on T.V. if not in real life: “You have the right to remain silent. If you choose to give up your right to remain silent, anything you say can and will be used against you in a court of law…”
Often times, the officer reciting this little speech does so from memory in a robotic, monotone voice. (Or maybe even reads it from a laminated card in his pocket.) Then, with all the genuine, folksy expression he can possibly muster up, the officer says something like: “So, you wanna’ tell me what’s going on here tonight?” Or: “Have you had anything to drink this evening?”
In an effort to minimize things, the natural inclination is to ‘talk’ with the officer, ‘just talk.’ Human nature tells us we can negotiate our way out of this little predicament we are in: “My girlfriend and I got into an argument earlier, but it’s O.K. now.” Or: “I’ve only had 2 beers.” (I wish I had a nickel every time someone has told the arresting officer that they’ve only had 2 beers!)
Well, guess what. You CAN’T negotiate your way out of it. I can’t begin to count the number of police reports I’ve read as a lawyer. Most of them (unfortunately) contain statements made by the person being arrested. But you know what? I have never read a police report where the officer wrote something like: “After a friendly chat with this likeable fellow, I realized everything was O.K. and I had made a mistake to stop him in the first place.” It just plain doesn’t happen.
The officer isn’t trying to figure out a way to justify letting you go. What the officer is really doing is trying to figure out a way to justify arresting you! He is collecting evidence. Yes, that’s right. He’s collecting evidence to help the prosecutor get a solid conviction. And let me tell you, there’s nothing quite like a free and voluntary incriminating statement made by the “suspect” to help the prosecutor get a solid conviction.
The Constitution, the Supreme Court and YOU.
This report is not intended to be a civics lesson or a lecture from government class, but in order to really know what your rights are, it helps to know where those rights come from. The 5th Amendment to the United States Constitution states: “No person shall be compelled in a criminal case to be a witness against himself.”
Notice it specifically says “compelled” meaning forced or required. As long as any statements you make are voluntary, and you have not been compelled to say anything, those statements are admissible as strong evidence against you. (Bad) On the other hand, if you choose not to answer the officer’s questions, which is your right, you effectively deprive the officer (and the prosecutor) of that evidence. (Good!)
In the case Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court decided that the 5th Amendment privilege against self-incrimination was the basis to be used for ruling on the admissibility of a suspect’s statements. Now you know why your right to remain silent is called your Miranda right. (Now you also know why you never see police officers give Miranda warnings in movies older than 1966!)
The “Cooperation” Factor
“Wait a minute” you say, “Aren’t there times when it’s good to cooperate with the police?” Well, it’s never a good idea to be deliberately UN-cooperative, but if you are considered a suspect, cooperating with the police officer at the scene or at the station only makes things worse for you and better for the prosecutor at the court house. And that’s where it really matters.
Many people who have been arrested recall the officer telling them: “If you work with us, we can make things easier for you.” Keep in mind, the police officer has no authority to charge crimes or to dismiss charges, either. That is the exclusive authority of the prosecutor. Maybe the officer can make things “easier” for you while you are at the station, like get you a soda or a cup of coffee, let you have a smoke, etc. But the officer has absolutely no authority to make things “easier” for you once he sends his report to the prosecutor’s office. Any “perks” you get for cooperating with the police end at the police station door.
The time to cooperate (if at all) is when you are dealing with the prosecutor, the only one who actually has the authority to initiate, amend, reduce or to dismiss criminal charges. The time to cooperate is when you have an attorney advising you and representing you. That way you aren’t the one explaining to the prosecutor whatever information you may be prepared to share!
For example, it very well might be in your best interest to admit to Count I of a criminal complaint if the prosecutor is willing to dismiss Counts II and III in exchange. (Particularly if the prosecutor has a pretty good case against you.) But, if you have already made a statement to the police that supports everything you’re charged with, the prosecutor has a lot less motivation to negotiate with your lawyer!
Here’s another thought: What if the one “witness” necessary to convict you of whatever it is you are charged with is unavailable to testify? (Maybe that “witness” has a colorful criminal record, or maybe even has an outstanding arrest warrant or two?) As long as you haven’t been too “cooperative” with the police, and explained everything, your defense attorney has a much better chance of getting a case like that dismissed on your behalf!
The point is, if you want your lawyer to get the best possible outcome for you, you need to give your lawyer the tools to do that. DON’T give those tools to the police and the prosecutor!
Always Ask to Speak With Your Attorney
Police have their own set of rules that they need to obey just like you do. Without listing a bunch of Supreme Court case citations or delving into another government lecture, the 6th Amendment “right to counsel” says that if a suspect asks to speak with his attorney before or during questioning by the police, the police “must break off questioning immediately.” Also, they may not begin questioning again until the suspect’s attorney is present. Think about that.
This gives you an enormous amount of power over the police! Rather than get angry, frustrated or scared and say something that can only make things worse for you, just politely ask to speak with your attorney. Make it clear that you do not wish to be questioned unless and until your attorney is present. Make that simple request, and the police “must break off questioning immediately.”
Here is a “real world” example of how powerful this “right” can be. Last year, one of my clients was arrested and taken to the police station for an interview. At the beginning of the interview, he asked to speak with his lawyer. The officer said: “As soon as your attorney is down here, he won’t let us talk to you.” He also said: “You know, if you don’t want to help us, we can’t help you.” Fortunately, this was all captured on video tape. My client was naturally very scared, and admitted to everything the police had accused him of.
During the normal “discovery” process, I obtained a copy of the videotaped interview and watched it from the very beginning. I brought my client’s request for his attorney to the attention of the prosecutor and the judge in the form of a Motion to Suppress Evidence. Let’s just say that the judge was not impressed with the police officer’s interviewing “techniques.” Because the officer completely disregarded my client’s clear request to speak with his attorney, the judge suppressed the entire statement. Without that evidence, the prosecutor decided to dismiss all charges.
Yes, I drafted a solid suppression motion. Yes, I cited all the right statutes and all the relevant case law. I’m a lawyer, that’s what I’m supposed to do. But a lot of the credit for that good outcome goes to my client for giving me the tools to work with to get him the best possible result. That’s powerful stuff.
Know Your Rights, Exercise Your Rights
No doubt, we live in the greatest country on the face of the earth. We have rights and freedoms that many people can only dream of. The sad part is that our legal system affords us rights and freedoms that many of us aren’t really aware of. Knowing what your rights are is of great importance. But, simply knowing your rights is of no value if you don’t exercise your rights.
- You have the right to remain silent. If you choose to give up your right to remain silent, anything you say can and will be used against you in a court of law!!
- You have the right to an attorney and the right to have that attorney present during questioning.
- If you cannot afford an attorney, one will be appointed to represent you.
Now, ask yourself, why would anybody “waive” those rights?
As you can see, the best client is an informed client. The more tools a client provides to his attorney, and the fewer tools he provides the police and prosecutor, the greater the options are for achieving a positive outcome.
A voluntary admission to the police is basically the same as a “guilty plea” to the court. If you’re going to plead guilty, at least give your lawyer the opportunity to get some benefit for you in return!
For more information about the importance of invoking your 5th Amendment Right to Remain Silent in any Johnson County, Kansas criminal investigation, view the short video at the top.
Paul D. Cramm
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