Wednesday, November 25, 2015

Being Prepared "Legally"

Here comes a disclaimer: I am not a lawyer. My articles here on this blog are not legal advice. What the heck are you doing looking for legal advice on a blog for anyway!?
I want to say also that I really am impressed with the law enforcement professionals of this country. I know that everyone has had bad experiences with a police officer. Usually because we have broken a traffic or other law. Once in a while I will run across a jerk officer who is not very professional. Everyone has a story. I got pulled over early one morning because the officer wanted to know what I had been up to. It was early and I came from an area where not a lot of people frequent. I was in the left lane of the highway and he was behind me. After a few minutes he turned on his lights and pulled me over. I knew I had not been speeding. He said he pulled me over because I didn’t use my signal when he pulled me over. I said “I wasn’t going to pull over until you turned on your lights! You’re pulling me over for something I hadn’t done yet?” He smiled and I smiled. We both understood the other and nothing more was said. He checked me for warrants and I went on my way. He was not a jerk but was on a fishing expedition and got caught.
Having told my story I still maintain that we have the best trained, most experienced, and best law enforcement in this country than the whole world. I appreciate what they do and mostly how they do it. I’m glad they are there putting their lives on the line for me and you.
But, here comes the caveat, no good can come from talking to the police. They have a thankless job and I would like to help, but I don’t. We have certain rights in this country and we should exercise those rights when talking to the police. Even if you are not being arrested you have the right to remain silent. Some officers don’t like that and will try many things to get you to give away that right. Do not let them.
On June 13, 1966, the outcome of Miranda v. Arizona provided that suspects must be informed of their specific legal rights when they are placed under arrest. This decision was based on a case in which a defendant, Ernesto Miranda, was accused of robbery, kidnapping, and rape. During police interrogation, he confessed to the crimes.
The conviction was overturned due to allegedly intimidating police interrogation methods. After a retrial that included witnesses and other evidence, Miranda was again convicted. His trial was, however, then assured of being fair, and the original conviction was reasonably upheld without question.
So as a result, as you are arrested, the officer must inform you of your 5th amendment rights. It is commonly called Miranda rights, officially it is called Miranda warning.
The 5th amendment to the Constitution says:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Miranda Warning reads:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be appointed for you.
Ever watch the reality show “Cops”? The idiots on this show often give up their rights and things are worse for them. I’m not saying you should try to get away with something, but we were given these rights so we wouldn’t incriminate ourselves and law enforcement and the judicial system would have to do their jobs well. This is as it should be. Our judicial system is not perfect, but it’s the best in the world.
Reasonable suspicion is the legal standard by which a police officer has the right to briefly detain a suspect for investigatory purposes and frisk the outside of their clothing for weapons, but not drugs. While many factors contribute to a police officer’s level of authority in a given situation, the reasonable suspicion standard requires facts or circumstances that would lead a reasonable person to believe that a suspect has, is, or will commit a crime.
While reasonable suspicion does not require hard evidence, it does require more than a hunch. A combination of particular facts, even if each is individually insignificant, can form the basis of reasonable suspicion. For example, police may have reasonable suspicion to detain someone who fits a description of a criminal suspect, a suspect who drops a suspicious object after seeing police, or a suspect in a high crime area who runs after seeing police.
Because reasonable suspicion gives officers legal authority to detain you, the absence of reasonable suspicion does not require officers to tell you that you’re free to leave. They will often use your uncertainty as an opportunity to ask probing questions even if the conversation is legally “voluntary”.
In such situations, it’s up to you to determine if you’re being detained or are free to go. Before answering an officer’s questions, you may courteously ask “Officer, am I free to go?” If you’re free to go, then go. If the officer’s answer is unclear or he asks additional questions, you may persist by repeating “Officer, am I free to go?”
Keep in mind that refusing to answer an officer’s questions does not create reasonable suspicion. But acting nervous and answering questions inconsistently can create reasonable suspicion. Also, you have the 4th Amendment right to refuse search requests, and your refusal does not create reasonable suspicion.
If you are not free to go, you are being detained. The officer might have some reason to suspect you of a crime, and you may be arrested. In such a situation, your magic words are “I’m going to remain silent. I would like to see a lawyer.” These magic words are like a legal condom. Because anything you say can and will be used against you in court, they’re your best protection if you’re under arrest.
If the police are talking to you, it’s because they suspect you have committed a crime. If they have detained you, it’s because they already have enough evidence to arrest you and they want to see if you will admit it and thus, give them an even stronger case against you. If they have evidence to arrest you for a crime, they will. If they don’t, they won’t. It’s as simple as that. Talking to them or not talking to them won’t make a difference!
Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.
This kind of thing happens all the time. A person who is completely innocent and who is trying to vehemently assert their innocence will go overboard and take it a little bit too far and deny some insignificant fact, tell some little white lie, because they want to sound as innocent as possible. But if the police have evidence of that lie, it makes your entire statement look like a lie.
Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.
For example, a suspect is being questioned about a murder. He is truly innocent of the murder. But in the course of explaining his innocence, he makes the statement that he never liked the victim, because the victim was not a nice guy. A statement like that could be used to prove motive.
Or in the course of the statement, the suspect might admit that he was in the area of town where the murder was committed at the time it was committed. Although he’s innocent and although this statement is true, the prosecutor could use that statement to suggest that the suspect had the opportunity to commit the crime, which looks very bad in front of a jury.
Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity, you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.
What if the police officer remembers something wrong? What if he remembers you said “X” when actually you said “Y”? If the police officer takes the witness stand and contradicts your statements at trial, it will kill your credibility. You can take the witness stand and say “I never said that!” But it’s your word versus a police officer. Who’s the jury going to believe? Who will the jury assume is lying to save his own skin? Who will the jury believe is lying because he’s really guilty? You guessed it. YOU!
Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on their memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.
Example: Suppose a police officer is questioning A suspect about a homicide. And the suspect makes the statement “I don’t know who killed the victim. I’ve never owned a gun in my life. I don’t even like guns.” On it’s face, there’s nothing incriminating about that statement. But suppose at trial, the prosecutor asks the police officer if anything about that statement surprised him. The police officer answers “Yes, it surprised me when the suspect mentioned a gun, because I had never mentioned a gun before that. I merely told him that I was investigating a homicide.”
When the officer said there has been a homicide, the suspect may have simply assumed that the killing was done with a gun. Or the suspect may have overheard in the police station some other officer talk about the fact that it was a shooting. But if the officer taking the statement had never mentioned a gun or a shooting, and the suspect makes the statement that he had never owned a gun, you give the prosecution the opportunity to create some high drama, suggesting that suspect has had a Freudian slip, and has made a statement about a gun because he is, in fact, the murderer. And as the murderer, he knew that a gun was used.
Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.
If you tell your story one time at trial and you tell the truth and you’re innocent, there’s very little the prosecutor can do by way of cross examination. But if you’ve told your story twice, once at trial, and once previously in a statement to the police, many months apart, the chances are very high that, even if you are telling the truth, some little details in your statement are going to change.
A good cross examiner will pick up on these changes and will relentlessly question you about them in an effort to make it look like you are lying.
So for all these reasons, whether you are guilty or innocent, whether you want to confess or want to exonerate yourself, whether you’re poorly educated or the most eloquent speaker in the world, you should NEVER, EVER, under any circumstances, give a statement to the police when you have been detained as a suspect. Or in an investigation. You may be a witness at first, then with something you said, you become a suspect.
I’m not saying that every detective and every prosecutor is this way, but their job is to find the person that did the crime. They must do it the best way they know how and that could include the wrong person, saying the wrong thing. Do not talk to the police.
I repeat, no good can come from talking to the police.
The words to remember are:
Am I being detained? Am I free to go?
If you are detained:
I am going to remain silent. I would like a lawyer.
Answer to the question of any type of search:
I do not consent to searches.
I know this sounds like I’m paranoid and I don’t trust the police or the justice system. I do. I know that many people have been jailed wrongly through honest mistakes. Plus there are some dishonest law enforcement and lawyers and judges out there. I think they are the exception, not the rule.
Self-defense consists of many things. Legal defense starts with you not doing stupid things or anything that could be misconstrued as crime. Cooperate but only so far. Don’t put yourself in danger.
My apologies to my brothers in law enforcement. Love you man!
Semper Paratus
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