Post Arrest Rights
Two weeks ago I wrote about some of the rights suspects have leading up to, and during, an arrest. Today I am going to continue that train of thought by discussing some important suspect rights after an arrest. No one likes getting arrested, that much is clear, but it does happen. In order to preserve your legal rights, rights often guaranteed by the Constitution itself, it is important that you to understand a little more about the arrest process.
Not a conviction
First and foremost, you need to clearly understand that an arrest does not equal a conviction. In fact, an arrest really does not say much of anything about your ultimate guilt, your chances in court, or even about what the police know or don’t know. Plenty of totally innocent people get arrested and even charged. That is why we have courts; to sort out the legitimate police action from the mistakes.
This point bears repeating because there is a lot of confusion surrounding this issue, especially as relates to what the police may or may not know about you or what you allegedly did. An arrest does not equal a conviction. You have still not been convicted of a crime until a judge or jury decides beyond a reasonable doubt, the highest burden in the law, that you are guilty.
Everything you say can be used against you…
I hear too many stories about suspects who, once arrested, start discussing every possible law that they may, or may not, have violated. Do not be one of them. You will get a chance to tell your side of the story. Wait for a lawyer to assist you. This is usually good advice before an arrest but it is absolutely critical after an arrest. Even if you feel sure that you committed a crime, you may be legally innocent or have a legitimate defense. Even if a law was violated, police are absolutely required to follow certain procedures during their investigation and their failure to do so may be fatal to their case against you.
After the arresting process is complete and you have been brought in officers are likely to start asking questions. Confessions are usually a very bad idea. Unless you have spoken to a lawyer first, do not give one. When they read you your rights, the part about how “anything you say can be used against you in a court of law…” that’s true. A confession may be misconstrued or based in part by coercion. Do not feel obligated to cooperate merely because you are vulnerable. Request that an attorney be present, in the event you want to confess.
It does not matter how much they ask, you should not tell authorities anything without speaking to an attorney first. Do not take a deal to “make their day easier”, or to “be a good guy.” Without an attorney there to represent your interests, you have no way of knowing when the authorities are offering you a legitimate legal deal.
And it is not just the cops. There are lots of cases on the books when investigators have put other people up to the task, ranging from your cell mate, to a friend. If you are arrested or are a suspect in police custody, it is best that you keep quiet. Allow an attorney to represent your best interests.
Just say NO
Sometimes it is not enough to keep quiet. If investigators are persistent, and they have been in the past, clearly, firmly and politely tell them that you do not want to answer questions without an attorney present to represent you. By law, they will stop asking at that point. If they continue to ask questions, remember to politely and unequivocally state that you do not want to speak without the representation of an attorney.
During most investigations, you have a general right to end the questioning. This might not apply in the field when officers are actively trying to get a dangerous situation under control, but once you are back at the station in complete custody, they really should stop asking if you say you are done. You may have to be really clear about your desire to be done talking, but that just means that you cannot be ambiguous in your communications. Even if investigators ignore your requests, a good attorney may be able to get a subsequent confession excluded during your trial, as long as you did your best to clearly end the questioning.
Ask for an attorney
You have a right to speak with an attorney. In fact, you have this right regardless of your ability to pay for an attorney. The authorities must provide you with access to a qualified attorney if you ask for one. It might not happen right away, but keep patient and keep asking. They do have to get you an attorney and give you the opportunity to talk with an attorney in private.
However, your right to an attorney is not self-executing. You must actually and unambiguously express your desire to speak to an attorney. It is usually a good idea to do so in conjunction with your refusal to answer questions. Just say “I want to speak to an attorney and I won’t answer any more questions at this time.”
What comes next?
After an arrest, authorities have a limited amount of time in which to either press formal charges or release you. The specific time limits can depend on the circumstances but it is usually not more than a couple of days. This means that within a day or two, you will probably be brought before a judge for the first of several hearings. At this first hearing they do not have to prove much, but they do have to give an explanation of why they arrested you and what they think you may have done.
Even at this stage, it is important to watch what you say. If you have not yet spoken with an attorney, let the judge know. Please, whatever you do, be polite to the judge. You will absolutely make things worse for yourself if you start disrespecting the court. Do what the judge asks at all times. Sit quietly, do not interrupt, and answer questions if you can. Judges are not your enemy and their impartiality serves the interest of justice.
By this point, you really should have been given a chance to speak with an attorney. From there, you’ll have to work with your attorney to figure out what to do next.
Get Legal Help
I have kept this discussion colloquial in order to avoid complicating an already difficult subject, which means that what I have written here only covers a few basics. Talk to a qualified attorney for specific legal advice. I am here to help if you have further questions. Contact me immediately to avoid jeopardizing your legal rights.