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YOUR RIGHTS AND WHAT TO DO UPON ARREST
You've been arrested, or someone you know has been arrested. Don't
assume that it can't happen to you; the ease by which one can get
arrested is amazing. Many people believe that if they "explain the
situation" or tell their side of the story to the police, they will be
let go, or at least things will go easier on them if they "cooperate".
Nothing could be further from the truth.
Perhaps you or the person arrested feel that you were unjustly
arrested because you are innocent. Obviously, the arrest would not
have taken place if the police agreed with you. It is the job of the
police to get as much information from you in order to convict you.
Many police officers consider themselves to be a combination of
prosecutor, judge and jury, and they will do their best to confuse you,
intimidate you and to get information from you that will convict you.
And when your trial finally occurs, it is far from uncommon to see
police officers lie in court in order to convict you. You will be
stunned to find out what you supposedly told them.
About 90% of all convictions are primarily based upon evidence
elicited from the person arrested. Therefore, what you do or say upon
arrest is absolutely crucial as to whether you are convicted or not.
When you have been arrested, you will be invited to "tell your
side of the story." Don't feel that you can just because your rights
haven't been read to you. Do not be tempted to tell the police
anything. Don't try to lie. Give the police your name, address,
etc., and don't try to use an alias or some other name than your . When
you are questioned about anything else, POLITELY insist upon having an
attorney present. Ask politely for a telephone. Often, you will be
told that you will be permitted to make a telephone call "after we are
finished." Simply state politely t you will not discuss any matter
without first consulting an attorney. If you cannot afford an attorney,
it does not matter. One can be appointed for you, or a public
defender can be appointed. Again, politely ask to make phone calls.
If the police continue to try to question you, constantly, constantly,
constantly politely ask for an attorney. Insist that you will answer
no questions without an attorney.
There are several police techniques that you should know about.
One is called the "Mutt and Jeff" technique, and is the most commonly
used. In this situation, one of the police officers will act as the
"tough guy." He might put a gun to your face and tell you that he'd
like to blow you away. He may call you every name in the book, and
physically abuse you. They tell you how you are going to ja hreaten
you with deportation (if you are an immigrant), swear at you, and use
every technique you can think of to intimidate you. Then the other
police officer approaches you. He is "Mr. Nice Guy". Maybe he offers
you coffee or food, or a cigarette e tells you how bad the other guy
is, and that he wants to help you. Then he tells you that if you tell
him "what really happened", he can get that "tough guy" off of your
back. He genuinely seems to sympathize with you and seems to be
concerned about situation. Don't fall for it. Politely refuse, and
ask to see an attorney.
Yet another technique of police questioning is to tell you that
the person you were arrested with has confessed to the crime, or that
you have been identified by witnesses. Sometimes the person arrested
is placed in the same room as the person t arrested with, and that
person DOES confess. Don't let that shake you. Say nothing, and
politely refuse comment, and insist upon seeing an attorney.
If the charge is fairly serious, the arrested is often taken to an
"interrogation room". The room is intimidating and depressing.
Usually, there are no windows, and the furniture will be stark. A
wooden table, wooden chairs without arms, and the room will be painted
pea green or gray. Often there is a small bath with a mirror.
Sometimes it is a two-way mirror. An officer or detective will sit on
either side of you, and your back will be to the door. Politely
refuse to answer any questions, and ask for an attorney. They will be
persistent. Don't scream th yo ur rights haven't been read to you.
Simply politely ask for an attorney, and say NOTHING. If an assistant
state's attorney comes in, remember that he or she is a prosecutor,and
will also be there to elicit information to convict you. Politely
refus nd ask for an attorney.
People seem to believe that you are permitted only one phone call
from a police station. That comes from movies. Police may even tell
you that you have only one phone call. You may make as many phone
calls as is reasonable. Your primary objectives are: (1) to get an
attorney, and (2) to get the bail money required, i il has been set. If
bail hasn't been set, then you will be going to court fairly soon to
get bond set. REMEMBER: NEVER DISCUSS THE FACTS OF YOUR CASE OVER THE
PHONE. The police may want you to enter what is known as a "line-up",
where you and sever th ers are placed in a line for purposes of
identification by alleged witnesses. Or you might be invited for a
"show-up", where a witness is asked to identify you on a one-on-one
basis. Politely refuse, but do not attempt to physically resist.
Insist upon an attorney being present. If you are ignored, attempt to
pay attention to police conversations with the witnesses and attempt
to mentally note the physical descriptions, including clothing, of the
others in the "line- with you. Remember, make known your desire for an
attorney, but do not physically resist.
If you receive a phone call from someone who has been arrested,
tell them to: (1) Say nothing to the police, (2) object to any
questioning by the police without an attorney present, and (3) to be
polite at all times. Ask them what the bail amount is, and if they
don't know, ask to speak to someone who does. If bond hasn een set
yet, find out when bond court is, and try to get family and friends to
go. Tell the accused that you will get them all the help you can get.
Get phone numbers of relatives and friends. Tell the accused that you
will attempt to get an attorn an d do so. Don't forget, an accused
person in custody is the loneliest and most frightened person in the
world. They are surrounded by police officers, and you are the only
person who can give them moral support, and to give them resolve.
The police know that the arrested is frightened and lonely. Don't
wait until "your rights are read" before exercising them. Somehow
rights, if read at all, tend to be read after the police have elicited
the information they want. Then it's too late. At trial, the
policeman will testify that your rights were read BEFORE you the
information.
When you have been arrested, it is not wise to start yelling about
your civil rights. Lights go out, treatment becomes worse, and you
will be considered a trouble-maker. Be polite at all times, and if you
are questioned, politely ask to see an attorney. Then ask the officer
about his family, or ask about what the officer thinks about a recent
sporting event. It certainly doesn't hurt if the officer e ually gets
to like you even though you won't answer his questions. Don't forget,
you have the right to an attorney whether or not you can afford one.
If bond hasn't been set, and you or the arrested is scheduled for
bond court, get as many friends and relatives there as possible. When
the arrested comes from the lock-up area, nothing helps more than
seeing familiar faces. Even more importantly, the judge setting bond
is impressed because friends and family in the courtroom shows roots
in the community, and the bond set will be lower. If you are a le in
your community, or are a person that an arrested might call, you
should have the office and home phone numbers of at least five
criminal defense attorneys. Arrests tend to occur during the evening
and early morning hours, so having home phone numb o f criminal
attorneys is crucial.
Additionally, make sure that you don't discuss your case with your
cell-mates. It is not at all unusual that a cell-mate will tell
police what you said in order to get their own situation reduced.
Again, be polite, but tell a cell-mate nothing. And don't listen to
their advice, regardless of how experienced they s to be.
Remember, what happens in the twenty-four to forty-eight hours
after arrest is absolutely crucial. Don't discuss your case with the
police, insist upon an attorney, and be polite at all times. If you
are contacted by an arrested person, give him or her the preceding
advice. Tell the arrested that you will attempt to an attorney, and
will try to arrange bond money, or to have relatives in court at the
bond hearing. Get phone numbers of relatives and friends, and do not
discuss the case with the arrested, and tell them not to discuss the
case with anybody except a tt orney for them. Support the arrested
emotionally as much as possible.
If you need further information on this subject or other criminal
matters, please feel free to call me at 278-1144.
Michael J. Elliott
Criminal Defense Attorney