Saturday, March 23, 2013

Legal Rights After An Arrest

Post Arrest Rights

Two weeks ago I wrote about some of the rights suspects have leading up to, and during, an arrest. Today I am going to continue that train of thought by discussing some important suspect rights after an arrest. No one likes getting arrested, that much is clear, but it does happen. In order to preserve your legal rights, rights often guaranteed by the Constitution itself, it is important that you to understand a little more about the arrest process.

Not a conviction

First and foremost, you need to clearly understand that an arrest does not equal a conviction. In fact, an arrest really does not say much of anything about your ultimate guilt, your chances in court, or even about what the police know or don’t know. Plenty of totally innocent people get arrested and even charged. That is why we have courts; to sort out the legitimate police action from the mistakes.

This point bears repeating because there is a lot of confusion surrounding this issue, especially as relates to what the police may or may not know about you or what you allegedly did. An arrest does not equal a conviction. You have still not been convicted of a crime until a judge or jury decides beyond a reasonable doubt, the highest burden in the law, that you are guilty.

Everything you say can be used against you…

I hear too many stories about suspects who, once arrested, start discussing every possible law that they may, or may not, have violated. Do not be one of them. You will get a chance to tell your side of the story. Wait for a lawyer to assist you. This is usually good advice before an arrest but it is absolutely critical after an arrest. Even if you feel sure that you committed a crime, you may be legally innocent or have a legitimate defense. Even if a law was violated, police are absolutely required to follow certain procedures during their investigation and their failure to do so may be fatal to their case against you.


After the arresting process is complete and you have been brought in officers are likely to start asking questions. Confessions are usually a very bad idea. Unless you have spoken to a lawyer first, do not give one. When they read you your rights, the part about how “anything you say can be used against you in a court of law…” that’s true. A confession may be misconstrued or based in part by coercion. Do not feel obligated to cooperate merely because you are vulnerable. Request that an attorney be present, in the event you want to confess.

It does not matter how much they ask, you should not tell authorities anything without speaking to an attorney first. Do not take a deal to “make their day easier”, or to “be a good guy.” Without an attorney there to represent your interests, you have no way of knowing when the authorities are offering you a legitimate legal deal.

And it is not just the cops. There are lots of cases on the books when investigators have put other people up to the task, ranging from your cell mate, to a friend. If you are arrested or are a suspect in police custody, it is best that you keep quiet. Allow an attorney to represent your best interests.

Just say NO

Sometimes it is not enough to keep quiet. If investigators are persistent, and they have been in the past, clearly, firmly and politely tell them that you do not want to answer questions without an attorney present to represent you. By law, they will stop asking at that point. If they continue to ask questions, remember to politely and unequivocally state that you do not want to speak without the representation of an attorney.

During most investigations, you have a general right to end the questioning. This might not apply in the field when officers are actively trying to get a dangerous situation under control, but once you are back at the station in complete custody, they really should stop asking if you say you are done. You may have to be really clear about your desire to be done talking, but that just means that you cannot be ambiguous in your communications. Even if investigators ignore your requests, a good attorney may be able to get a subsequent confession excluded during your trial, as long as you did your best to clearly end the questioning.

Ask for an attorney

You have a right to speak with an attorney. In fact, you have this right regardless of your ability to pay for an attorney. The authorities must provide you with access to a qualified attorney if you ask for one. It might not happen right away, but keep patient and keep asking. They do have to get you an attorney and give you the opportunity to talk with an attorney in private.

However, your right to an attorney is not self-executing. You must actually and unambiguously express your desire to speak to an attorney. It is usually a good idea to do so in conjunction with your refusal to answer questions. Just say “I want to speak to an attorney and I won’t answer any more questions at this time.”

What comes next?

After an arrest, authorities have a limited amount of time in which to either press formal charges or release you. The specific time limits can depend on the circumstances but it is usually not more than a couple of days. This means that within a day or two, you will probably be brought before a judge for the first of several hearings. At this first hearing they do not have to prove much, but they do have to give an explanation of why they arrested you and what they think you may have done.

Even at this stage, it is important to watch what you say. If you have not yet spoken with an attorney, let the judge know. Please, whatever you do, be polite to the judge. You will absolutely make things worse for yourself if you start disrespecting the court. Do what the judge asks at all times. Sit quietly, do not interrupt, and answer questions if you can. Judges are not your enemy and their impartiality serves the interest of justice.

By this point, you really should have been given a chance to speak with an attorney. From there, you'll have to work with your attorney to figure out what to do next.

Get Legal Help

I have kept this discussion colloquial in order to avoid complicating an already difficult subject, which means that what I have written here only covers a few basics. Talk to a qualified attorney for specific legal advice. I am here to help if you have further questions. Contact me immediately to avoid jeopardizing your legal rights.

Saturday, March 9, 2013

Legal Rights Prior To An Arrest

By now most people have heard at least a little about the ongoing investigation and trial of Oscar Pistorius, famous track star, who is accused of shooting his model girlfriend in cold blood. At times, the story trumps even the best Soap-Opera Hollywood has to offer; but despite its many twists and turns, the case highlights some of the important considerations underpinning police investigations. It’s hard to draw direct parallels because of differences between United States and South African law, but let’s assume that this case had happened right here in California.

As a suspect, you have rights. While those rights might change based on specific circumstances, some general principles can be broadly applied. Prior to arrest, you have a right to walk away from an officer. If you don't feel like you would be allowed to do that, you may already be effectively under arrest which means that an officer should probably be reading your rights to you. If in doubt, ask. You may get a conflicting answer but you'll pressure the officers to clarify the situation. A simple “I need to get going, am I free to leave?” should head things in the right direction. Whatever you do, be respectful and remain calm.

Prior to Arrest:

Even without an arrest, officers do have some authority to question you, and to expect truthful answers. This does not, however, mean that you must volunteer information. Also prior to arrest, authorities have numerous, sometimes overlapping, powers of search and seizure, most often in connection with securing evidence that can be easily destroyed or ensuring officer safety. However, there are limits. Typically the things that you say only serve to expand police powers, so watch your words. The safest approach is to turn down any request to search you or your property. If the officers have the right, and sometime when they do not, they'll go ahead and conduct their search despite your “no”. Do not worry, if their search is against the law, you'll have your rights vindicated later with the help of an experienced criminal defense attorney.

This situation frequently comes up in homes or cars where an officer might ask to “have a look around” or to “see what’s in your trunk”. What they are really asking is for permission to conduct a search. This suggests that they don't feel secure in their power to conduct the search without your permission. What many people don't realize is that it’s perfectly acceptable to say “NO” and that the officers should respect your refusal unless they are willing to take things to the next level and place you under arrest.

Be sure that your “no” is clear and unequivocal. Saying things like “I don't know”, or “maybe”, or even just keeping quiet might be taken as a yes. Even if you clearly say no, the officers might still conduct the search, but your attorney can often help you get the unlawfully seized evidence excluded from any judicial proceeding. Alternatively, the officers might start pressuring you to change your mind. Don't do it, caving to the pressure and saying yes against better judgment frequently destroys a suspect’s best legal defenses. Be respectful and reiterate your unequivocal denial of consent.

After an Arrest:

Once an arrest is in progress, your freedom to leave has been terminated, but some other rights come into play such as your right to an attorney. If you are arrested, you are not suddenly required to volunteer potentially unlawful information. It’s important to remember that at no point in the process are you ever required to divulge information that might incriminate you. Once you are under arrest, the authorities have the power to restrain you and probably to search you for evidence or weapons.  From this point on, it’s generally a good idea to keep quiet until you talk to a lawyer. You might think that a clever story will quickly resolve the situation but it will probably just make your defense all the more difficult down the road.

Whatever you do, don't try to struggle or fight with the officers. Getting arrested can be terrifying and humiliating but you do not want to make the situation worse. You'll get a chance to talk to a lawyer, even if you don't have money for one, and a chance to have your story heard. Remember to be patient and that an arrest does not equal a conviction.


This area of the law is complex. Highly qualified lawyers and judges often disagree about the correct outcome of even the smallest of cases. You absolutely must contact an attorney for specific advice in your situation. What I've written here is only the barest overview of a wide range of rights and police powers. No web article, no matter how thorough, can ever replace personalized legal advice.