Just Say Know

Tuesday, 24 November 2009 09:25

You have the right to remain silent...

By Craig DeThomasis

 

 

The time may come when you find yourself involved in an encounter with the police and you become the focus of an interrogation. Understanding the issues that may arise and your rights under the different circumstances may help you decide how best to respond.

When being questioned by police, the first issue you must determine is whether you are free to leave. The police can detain you if they have reason to believe either you have committed a crime, you are in the process of committing a crime or you are about to commit a crime. Any of these circumstances will allow the police to temporarily detain you.

If you are not being detained by the police, the police do not need to inform you of your rights. When the police begin to question you, you may inquire, “Am I free to leave?” If you are, you may choose to do just that and will not need to consider the remaining items discussed below.

If the police inform you that you are not free to leave, you may inquire what the basis of the detention is. If you are questioned while being detained, you are entitled to be advised of your Miranda rights. These rights include the right to remain silent, the right to stop the questioning at any time, the right to counsel and the right to have counsel appointed for you if you cannot afford to hire an attorney yourself.

Before responding to questioning by the police, be aware of the following:

1. You do not have to answer questions posed by the police and may choose to invoke your right to remain silent. Whenever you choose to remain silent, such an act cannot be commented upon and used against you in court.
2. The fact that you have the right to remain silent does not mean that you have the right to lie to the police. Stating something that is not true can put you in greater trouble.
3. Anything that you do say to the police that helps you is known as a self-serving statement. Any self-serving statement is considered hearsay and is not admissible in court. On the other hand, any statement that you make to police that hurts your case is considered a statement against interest and is admissible as evidence against you.
4. Police officers can and do lie when questioning individuals. When police lie to a citizen to obtain information, it is considered investigative technique. On the other hand, when citizens lie to the police when they are being questioned, it is generally considered obstruction of justice.
5. The police are under no obligation to record an interrogation. If you choose to talk to a police officer, you are relying upon the officer to hear what you are saying and to record and report your statements accurately and completely. Basically, you are at the mercy of the person’s note-taking ability and memory.

The police have received training and have experience in handling interrogations. You should become familiar with these tactics they may use:

• falsely accusing you, or saying there are witnesses or physical evidence linking you to a crime;
• threatening adverse consequences if you choose to exercise your rights;
• implying promises of leniency for cooperation;
• denying you access to sleep, food, water or contact with family.

Unfortunately, there have been many recorded cases of false confessions resulting from police questioning and, as a result, many negative consequences to individuals accused of crimes.

The law has afforded you the legal protection of choosing whether to answer questions from the police. You need to carefully consider the issues above before deciding what to do. As with most legal questions, you certainly may consult with counsel before deciding what your best option may be.

Do you have legal questions? E-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it with the subject line “Just Say Know.”

Craig C. DeThomasis is a partner at DeThomasis & Buchanan, P.A., and has been an adjunct professor/lecturer at the University of Florida Levin College of Law since 1990.  He has been representing individuals accused of crime since 1983.  He can be reached at reasonabledoubt.org.  As always, he welcomes input from readers regarding issues of concern to you.