Don't Incriminate Yourself! What to do when being questioned by the police.

It has become increasingly common for law enforcement officers (cops) to engage in behavior which is designed to abrogate your rights as a US citizen…let me put that into English…the cops know (or think) that you did something wrong, and lets face it, maybe you did.  The cops are going to try to get you to admit it.  You have rights and at this point, the most important one is called “the privilege against self incrimination”.  This right or privilege is enshrined in the 5^th amendment to the U.S. Constitution.  You are never required, under any circumstances to make any statement to a representative of the government. *

You have probably heard about “Miranda”…let me clarify` what that means.  If you are “in custody” and subject to “interrogation”, you have to be advised of your right to remain silent.  That does not mean that you have the right to remain silent only when you are subject to “custodial interrogation”. You can never, under any circumstances be compelled to testify against yourself or make any statement at all.  If you are contacted by the police, and they are investigating an incident, they will likely suggest to you that you don’t have the right to remain silent.  That is not true.

The only right that you don’t have is the right to have your rights read to you…I can’t tell you how many cops I’ve talked to who don’t understand (or more likely pretend not to understand) this distinction…they think that if you are not under arrest or “in custody”, that you don’t have the right to remain silent.

Let’s put this into a practical application…lets suppose that you did something wrong…lets suppose that you stole a car.  If you get caught, the cop is going to ask you if you stole the car. He will likely arrange this “interview” in a way that will conveniently avoid the requirement that he “Mirandize” you.  At this point you might think that you only have two options; admit that you stole the car, or deny that you stole the car.  There is a third and infinitely preferable alternative and it is called “taking the 5^th”.  At any subsequent trial for stealing the car, the jury is going to want to know if you admitted or denied doing so…if you told the cop that you wanted to remain silent, the jury will never hear anything at all…they will never hear that the cop asked you if you “did it” and the jury will be left wondering why the cop never even bothered to ask you if you “did it”.  He did ask you, but by taking the 5^th * you have rendered the question inadmissible.

Taking the 5^th can be rather cumbersome for some people.  It sounds rather dramatic and it pisses cops off…You can accomplish the exact same thing by responding politely to any police questioning with any of the following suggested phrases:  “I’m sorry officer, I want to cooperate but I am concerned that I should have my lawyer present”, “I would like to speak to my lawyer first” or “talk to my lawyer”…

Because you also have the constitutional right to counsel (and your attorney will advise you to take the 5^th), asking to speak to your lawyer is the functional equivalent of taking the 5^th, but for many people it seems more polite…if you are ultimately unwilling to give a statement, you can blame it on your lawyer “I wanted to help out, but he wouldn’t let me cooperate”.  Don’t worry; we can handle the heat…

• It would be prudent to provide your name and date of birth or are likely to be taken into custody so that they can verify your identity…this can take along time.
• Or by asking to speak to your attorney…

It is important to know your rights. Be careful out there.

Sincerely,

David Moorhead

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