by Attorney Rebecca Houseman, Los Angeles, California and reprinted with permission from Crime, Justice and America magazine
Maybe because everybody has heard at least one TV cop issue the famous Miranda warning, people who have been arrested—especially if it’s the first time—don’t seem to take it as seriously as they should. You DO have the right to remain silent, and you should. You have the right to an attorney, and you should get one. And absolutely anything and everything you say can, and probably will, be held against you. Here’s how it works.
Gone Fishing
Often, police find themselves with only circumstantial evidence in a case. If they can get somebody to confess, they’ve arrested a suspect and done their job. So, if they arrest you, they have a vested interest in getting you to confess — or to at least say something that they can use to build a case against you. As a former Deputy District Attorney and prosecutor, I can assure you prosecutors will use the same information the same way. What can you do about it? Don’t say anything. Ask for an attorney. Even if you think you can explain everything away, you may unintentionally be harming yourself and making it harder to defend you later. Even if the police tell you they just want you to clear up a few seemingly harmless items of information so they can let you go—don’t talk!
Interrogation Tactics
At the point you refuse to talk and request an attorney, the police are supposed to stop questioning you. Sometimes they don’t. They may continue to question you, or keep you in an interrogation room. They know from experience that people who are frightened, stressed, and tired are more likely to talk. If you’re in an interrogation room, even if you’re not being questioned, something you say in an unguarded moment can be used at trial. Something you say in a moment of confusion can trip you up later if you contradict yourself, and can be used to disqualify your testimony at trial. You have the right to remain silent, and you have to exercise that right.
A Waiting Game
Nobody wants to sit in jail. But waiting until you can talk to an attorney might save you more jail time later. This might mean waiting 48 hours until your arraignment hearing. At that point, if you have information that will exonerate you, let your attorney present it. Your attorney can judge the value of what you want to say, collect corroborating evidence, and present it effectively. Many times, police don’t have enough evidence to convict you. They’re hoping you’ll incriminate yourself. If you keep that in mind and are patient, you’ll have a much better chance of winning your case.
Let Your Attorney Work For You
Your attorney should meet with you before the arraignment and work with you for a successful bail motion. Your attorney can also try to get your bail reduced if you can’t afford the original bail amount. A good lawyer will come to see clients in custody. Nobody can make promises about the outcome of a trial, but they can and should promise to take your call or return it quickly. And they should keep their promises. A lawyer should prepare you for court appearances. And can even help you fulfill your probation terms, so you don’t risk a violation. An attorney who knows prosecuting counsel can also probably get you a better deal if that’s necessary.
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