If you ever open your front door to find
police detectives asking you to follow them down to the station to discuss a crime they are investigating, this can be a devastating
moment of your life. No one hopes to be instantly confronted with a massive legal problem such as this. There
is so much you need to know and no place to turn for answers. That is, not until now. The author is a seasoned
criminal defense lawyer who has written this article from his vast experience to guide you through your time in the criminal
justice system. His helpful advice will guide you through the process that might begin with the police requesting
a voluntary statement.
It's 4:00 a.m. and you are fast asleep. Loud pounding
on your front door startles you to quickly try to awaken. You go to see who is there. Two very serious looking
men dressed in shirts and ties show their badges to the peep hole in the door. They are the police. Adrenalin
rushes through your circulatory system but you unlock the door and ask them what is wrong. They say they are investigating
a crime in the neighborhood and ask you to drive down to the police station to tell them what you might know about the crime.
You think, "Aren't they supposed to read me my rights? I have seen that dozens of times on T.V."
You don't know what to do. You don't want to be impolite. They are the authorities. You guess that
you must comply with their request. So you ask if you can get dressed first. Then, hoping to make it easy on yourself,
you give up your rights and do what they tell you to do.
The first thing you need to understand is that the police are
not always required by law to give you your rights when they want you to talk to them. In Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the U.S. Supreme Court decided the landmark case concerning when and under
what circumstances the U.S. Constitution requires police to advise a suspect of the right to silence and right to consult
with an attorney prior to answering police questions.
Police are not always required to read you your rights
under the Miranda decision. When police come to the scene of a crime and make an arrest but they do
not want to talk to the person they will not read him his rights. If the police stop you on the street and begin questioning
you and you volunteer to answer them, this is called a consensual encounter. They don't need to
read your Miranda rights. If they ask you to voluntarily go to the station and talk to them, even if it is
tape recorded, they don't need to give you your rights first under Miranda.
Does this sound strange to
you? Well, here is the two minute wrap up on Miranda. Basically, the Miranda decision requires
that whenever there is custodial interrogation the police must first advise the person of his 5th
amendment rights to silence and counsel. If they fail to read and get a valid waiver of those rights, the statement
will be suppressed by the trial court. That statement or confession will not be admitted into evidence at trial.
- Is the Person In Custody?
First, the court will determine whether you were in
custody. That depends on a number of factors. Were you told by police that you are under arrest?
Were you handcuffed and placed into the police vehicle? Were you free to walk off or leave? If you were taken
to the station did you drive yourself there freely and voluntarily? If you were talking voluntarily, were you free to
get up and walk out at any time? Did police questions focus on you as their only suspect? The answers to these
and other similar questions can be used to determine if you were in custody for purposes of Miranda. However,
a suspect could be clearly in custody but the police do not try to interrogate him when he pipes up and begins
to confess to the crime. This is the next inquiry under Miranda.
- Is the Person
Second, the court must determine whether the police were interrogating
you. The word "interrogate" simply means "to question." Are the police asking the suspect
questions while he is in custody? Of course, questions of personal background [i.e. name, address, date of birth, etc.]
may be asked and answered without the necessity of Miranda warnings. But any questions that go to the facts
or details of the crime and its surrounding circumstances may not be asked and answered until the police warn you of your
Now, with this basic primer in mind, let's look again at the central issue of this
article: "Come on down to the Station House and talk to us." As you can tell no Miranda warnings
are required. The police are asking you to come voluntarily. You could say, "No. I won't go and
get off my property." You could go inside and hop back in bed. However, if you decide to voluntarily go with
them anything you say will be used as a basis for charging you with a crime and arresting you right then and there.
at it this way, you are not in custody. You have not been charged with a crime. The police do not have probable
cause to arrest you. They are looking for something to hang their hat on in order to arrest you. They hope you
will come down to their Station where they are in control and they will get you to talk. If the government has the entire
burden to prove a case against you beyond a reasonable doubt, then they must do so on proof [real evidence and testimony]
other than your own words alone. If, you choose to talk, you do so at your own peril. You have constitutional
rights. You must assert them or lose them.
- Remember this: Never, Never Talk
to the Police Without a Lawyer!
So, when they come to call on you and try to shake you down, just
say, "No thanks!" Don't go with them. Don't agree to leave your home and go with the police
unless and until they arrest you. Always demand an attorney. Be loud and clear. Keep demanding to talk to
an attorney until you get one. Never give a voluntary statement to the police without demanding to have your attorney
For more helpful information on success strategies for a person charged with a crime,
Ira Still, Esquire
Info Blog: http://istilldefendliberty.blogspot.com/
Ira Still has been a criminal defense trial lawyer in Florida for over 30 years. He successfully represents his
clients on all crimes and in all courts. Ira has had many, many jury trials and is well known in Miami and Ft. Lauderdale
as a very successful trial and appellate lawyer. He has argued death penalty collateral appeals in the Florida Supreme Court
and in various District Courts of Appeal. He has filed briefs in the United States Supreme Court. Ira has tried
high profile cases such as police shooting the wrong person; persons charged with shooting police; capital murder and capital
sexual battery; violent crimes; drug trafficking; and virtually every other criminal charge. Ira is also an author,
speaker, teacher, mentor and coach.
© 2009 Law Offices of Ira Still