Here are the answers to common questions as it relates to two of our most well know rights, the right to remain silent and the right to an attorney.
Remember that not all advice fits every situation, and it is therefore strongly encouraged that you seek the counsel of an experienced attorney for information on all your legal questions.
RIGHT TO REMAIN SILENT
One of the most common concerns of our clients is when they should remain silent. Most people know that you have the right to remain silent, but how that right is asserted is not always clear.
If you are accused of a crime or you are in a situation where you suspect you could be accused of a crime, you must affirmatively assert your right to remain silent by telling police you do not wish to talk and you wish an attorney to be present for any questioning. “I don’t want to talk about what happened. I want to talk to an attorney.”
If the police try to ask you any questions or try to say something to incite you to say something about what happened, you should tell them “I don’t want to talk. I want an attorney.”
Why should I assert my right to remain silent? What difference does it make?
Asserting your rights and having the discipline to keep your mouth shut can help preserve your rights at trial and may help your attorney fight off sneaky police practices that seek to get you to say things that will help convict you.
When you assert your right to remain silent and follow through by refraining from talking about what happened, you are stopping yourself from potentially saying something that implies you are guilty of the crime. Almost anything you say could potentially link you to the crime or suggest you know something about the crime that implies you were involved. Police and prosecutors often use a person’s own words against them. For example, if someone denied their involvement by saying “I had nothing to do with that murder in the park!” If it turns out that the police never told that person the murder occurred in the park, the prosecution may seek to use that person’s statement to show how he know about the location of the murder even thought police did not disclose it to him.
What happens if I already said something?
Even if you already said something earlier, it is still best to stop talking once you realize you could be in trouble and immediately assert your right to remain silent and right to an attorney. Once the police advise you of your rights to remain silent (and all your “Miranda” rights), if you still agree to talk and give a statement, they will be allowed to use your statements against you in court.
Depending on the circumstances of the earlier statement, your attorney may be able to fight to keep that earlier statement from being used in court, but if you agree to voluntarily speak with police or give a written statement, it will be much harder to dispute your statements after you voluntarily agreed to give a statement.
If I assert the right to an attorney, Will they get me an attorney right then and there?
Probably not, but that is not the point. Although there are court appointed attorneys “on call” to appear at arrests, police very rarely call such an attorney to the scene of an arrest. However, if you assert your right to talk to an attorney, the police should stop trying to question you. Even if they don’t, you must maintain the self-control to keep your mouth shut and refuse to answer their questions.
Do I really have a choice? What if the police threaten to lock me up unless I talk to them?
Some police officers may try to mislead you by telling you that you could be let out if you tell them what “really” happened. The truth is, they cannot keep you in jail if they don’t have enough evidence (“probable cause”) to justify arresting you. If they have enough evidence to arrest you and keep you in jail, any statement from you will not help you get out of jail.
Refusing to give a statement will not keep you in jail; it was all the evidence the police already have that keeps you in jail. Giving a statement will not get you out of jail; but it could give police more evidence to justify keeping you in jail if they don’t yet have enough!
Most police believe their job is to arrest people and that involves building the evidence to prosecute people. Most police ask for statements to help their case and help their prosecution against you.
Ultimately, even if the police are holding you in jail, you have the choice to keep silent and not talk about what happened—they can’t keep you forever without filing charges against you. Even if you are arrested and taken to jail, you are supposed to be charged and brought to court in a timely fashion. Once at court, you will have a chance to talk to your attorney confidentially and you can make an informed decision about whether to say anything else.
WHAT TO SAY TO YOUR ATTORNEY
Now that you know when you stay silent, let’s talk about when you should speak up: when you are talking to your attorney. The follow applies when you and your attorney are in place where no other people can hear you talking to each other.
How much should I say?
Be open and honest. If you are alone with your criminal defense attorney, your conversations are confidential so he cannot reveal them to others if it would embarrass you or hurt your case. He must follow a strict code of confidentially or he could lose his license to practice law.
Make sure you are honest to your attorney about your immigration status if you are not a U.S. citizen. Criminal cases, even seemingly minor misdemeanor charges, may have extremely serious immigration consequences for non-citizens, including deportation, denial of naturalization, and denial of reentry into the U.S. However, if your attorney is aware of the issue, he can often help you work out a resolution to the case that will avoid these consequence. Being honest with your attorney because that is the only way he can best help represent you.
Your criminal defense attorney can only help you insofar as you help him or her understand your case and your legal situation. Keeping details or information from your lawyer only makes his or her job that much more difficult, which is in every case a detriment to your claim or defense. Your lawyer is there to represent you and therefore you need to have enough trust in him or her to divulge everything pertaining to your situation. Your attorney will in most cases ask questions that may seem very personal in nature, or might upset you. Remember that their only concern is to ensure you come out of the situation with the best results possible, and as such you should answer honestly so that he can help you determine how best to protect your interests.
Should I ask questions?
Ask questions and make sure you get answers. Your criminal defense attorney, if skilled, qualified and experienced, should expect you to have many questions about your case, their background, the costs involved, and any other related legal issues. You want to have a criminal defense lawyer who will take the time to answer these questions clearly and openly. You should know exactly what to expect walking into legal proceedings, from lawyer fees to court procedures. Make sure you are comfortable with your West Covina attorney and that they can explain legal jargon to your entire satisfaction before deciding to hire them.
Contact Law Office of Johnny Lai, Inc.
You should contact our office as early as you possibly can in regards to your case. The more time we have to study your case and the earlier we are able to begin representation of you, the better the outcome is likely to be. I recommend you call me immediately if you are facing a pending criminal charge or are scheduled for court on a case. Because of our dedication to serving all people, we can often work out a payment plan based on your needs and circumstances.
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