Arested? By Rick Collins
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GOT ARRESTED?
Custody. Custody generally means that a reasonable person, innocent of any wrongdoing, would feel that he or she was not free to leave. The place doesn?t matter: it can be at your home, job or gym, at the Postal Inspector?s office, in a police car, on the street, or wherever. If you?re not in police custody, the warnings don?t apply even if the police question you. Obviously, Miranda doesn?t apply if you?re questioned over the phone. Interrogation. Basically, that?s police asking questions (except for pedigree stuff like name and address). If you?re in custody and they?re going to question you, they have to give you the warnings. If you?re not going to be questioned, even if you?re in custody, the police don?t have to give them. Say you?re arrested for drunk driving. They decide not to ask you any questions, so they don?t give the warnings. But you spontaneously blurt out that you ?only had five beers.? Your admission of drinking can be used against you. The same usually goes if you peep up when you overhear the police talk about you to each other, such as, ?This dummy is going to be doing some major time for all this juice, huh?? What happens if the police don?t administer the warnings? The remedy is that your statements are excluded or suppressed because of the violation. Also, if the police find evidence as a result of an interrogation that violates Miranda, that derivative evidence may also be suppressed. Suppression of evidence may or may not require dismissal of the case itself. If there?s enough other evidence that is admissible, the case goes on. Keep in mind that incriminating statements are often the most damaging evidence in a criminal case. Let?s assume that under certain circumstances you?ve decided that it?s not in your best interests to submit to police questioning. If you?re not under arrest, you can simply ask, ?Am I under arrest? If not, I?d prefer not to stay and talk to you.? Then leave. If the officer replies that you?re not free to leave, then you can invoke your Fifth Amendment privilege by saying, ?I want to remain silent,? or ?I don?t want to talk to you.? If you invoke this privilege, the police must stop questioning you, at least for a good while. Even better, invoke your Sixth Amendment right by saying, ?I want an attorney right now.? If you demand a lawyer, the police can?t question you further unless you reinitiate the conversation. [For a thorough discussion of your Fourth, Fifth, and Sixth Amendment rights, check out Legal Muscle]. |