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Criminal Defense Guide
- Search and Seizure Rights
- Arrested: Your Rights
- Booking and Making Bail
- Getting a Criminal Lawyer
- Eyewitness Identification
- Criminal Arraignment
- Planning a Defense
- The Criminal Trial
- Pre-Trial Investigation
- Discovery During Trial
- Preliminary Hearings
- Defendants Rights at Trial
- Motions and Trial Procedure
- Evidence in a Criminal Trial
- Plea Bargaining
- Sentencing After Trial
- Appeals
- Court for Juvenile Crimes
- Rights of Prisoners
- Common Criminal Defense Terms
Talking with police officers is usually one of the more stressful encounters we have in our lives, and one that we typically avoid at all costs. Even when we've committed no crime, it can be nerve racking, but when we're guilty it's much worse. Police officers, particularly detectives, are judged by their ability to catch suspects and close cases; tasks that become immeasurably easier if a confession from a suspect can be induced. Therefore, police questioning of a suspect, whether before taking a suspect into custody or after an arrest, is generally aggressive, intrusive, and often downright tricky. To help you prepare yourself better should an encounter with the police unfortunately arise, this article will provide information as to the relevant laws and principles to follow when facing police questioning, whether you are being questioned and have not been taken into custody, or if you have been arrested.
Pre-custodial Police Questioning
Declining to Answer
As a citizen of the United States, under the 5th Amendment you have the right to remain silent. This "right against self-incrimination" applies whether you have been taken into custody or not. Typically, when a crime occurs police will come to the scene to investigate, which usually includes talking to witnesses and other parties who may have useful information. At this point, under Federal law, you are under no obligation to answer an officer's questions. The same is true if you are a suspect, however, the Supreme Court recently held in Hiibel v. Sixth Judicial District Court of Nevada, that a suspect subject to an investigative detention stop could be arrested under a state stop and identify law and obstruction statute for refusal to identify himself or provide identification. These laws apply when the police make what's called a "Terry" stop, referring to the defendant's name in a famous Supreme Court case, which occurs when a suspect is reasonably stopped and detained by police for questioning out in the field.
Most states have similar identification and obstruction laws, and therefore it is generally wise to provide identifying information to a police officer. However, that is as far as it goes. A suspect or witness is freely able to decline to answer police questioning, and often a lawyer should be contacted to protect the suspect's rights, even before being taken into custody.
Lying to the Police
Lying to the police should be avoided at all costs. It is far better to decline to answer a question than to lie. Lying during a police investigation can come back to haunt you big time, as anything you say, as you know, can be used against you in court. If you are unsure of how to respond to police questioning, be sure to consult an experienced criminal defense lawyer who can represent you.
Police Questioning of Those Who Are Arrested
Miranda Rights
Police are required to administer an arrested suspect's Miranda rights before initiating an interrogation, informing the suspect of his right to remain silent and consult with an attorney. If the police fail to properly administer a Miranda warning, they risk losing the ability to use any of the information discovered through a subsequent interrogation in a court of law. Even relevant, incriminating evidence will instead be excluded if a proper Miranda warning is not provided. Therefore, arrested suspects should take note of their right to hire an attorney, and in almost all instances, should exercise this right before agreeing to a police interrogation.
Intoxication, Mental Limitation and Confessions
The court or a jury, when considering the admissibility or credibility of a confession, can take a suspect's state of mind, including his level of intoxication, into account. However, courts have ruled that just because a suspect is more likely to confess when intoxicated does not necessarily mean he is mentally incapable of giving a valid confession. The burden thus falls on the suspect to show that the confession was involuntary and untrue. The court may exclude a confession if a suspect was so grossly intoxicated that he could not voluntarily waive his rights, but the other factual circumstances must also support such a claim.
Under the Constitution, confessions must be voluntary in order to be valid. Often police interrogators will offer a promise of leniency if the suspect cooperates, however, the general rule is that the promise of leniency to a suspect will nullify any subsequent confession. Before agreeing to any questioning by an interrogator that may end up leading to a confession, consult an experienced attorney to represent you at the interrogation.