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You Have the Right to Remain Silent...

Posted by Jenna M. Fliszar, Esq. | Mar 05, 2014 | 0 Comments

So why does everyone keep talking? The 5th Amendment right against self-incrimination is quite possibly the most well-known of all the Miranda warnings. In every crime drama on TV (and in real life, for the most part), the very first right that is read to people being arrested is “You have the right to remain silent. Anything you say can and will be used against you…” Despite knowing this, I'd be willing to venture a guess that 90% of the people who call me volunteered information to the police that ultimately affected their case negatively. What should you do if you come into contact with the police?

First, and most importantly, BE QUIET!!! There is absolutely no reason for you to give any more information than the basics. No matter how many questions the police ask you, you're never required to answer them. The police may try to scare you into talking, but don't take the bait. Now, I'm not saying you should act like a jerk or be completely uncooperative with the police; admittedly, cooperating with police can work in your favor when it comes to things like ARD applications, plea deals, and trying to get charges dropped altogether. But cooperation and admission are two very different things.

Consider the following example: We've all been pulled over when driving. And I do a lot of driving. On average, I drive about 3,000 miles every month. Statistically, I have a better chance of getting pulled over for a traffic infraction than the average person, and yes, I've been stopped on my way to court or some other location more times than I'd like to admit. The first thing a cop always asks is “do you know how fast you were driving?” I'll tell you what, when I see that cop car with his radar gun, the first thing I do is look at my speedometer, so yes, yes I do know how fast I was going. Have I ever admitted that to the officer? Absolutely not! My response is a simple, no, sorry. I have all my information in a spot in my car where I can quickly find it and hand it over to the officer so that any communication time is limited. I'm polite and cooperative, but I never volunteer any information that could possibly be used against me in the future. Why hand the officer what he needs to give me a citation?

The scenario I see most often is people volunteering their drinking habits when pulled over for a possible DUI. This drives me crazy! At least once or twice a week I have a client call and tell me that when the officer asked if they'd been drinking, they actually admitted it. Their reasoning is that they wanted to be honest with the officer and thought their honesty would help in avoiding charges. I'm going to let you in on a little secret – this honesty will probably NEVER help you avoid charges. What it will do is give the officer probable cause to arrest you. A simple admission may not be enough by itself, but the standard observations we then see are the subjective ones that are hard to disprove, like odor of alcohol, slurred speech, and bloodshot, watery eyes. They will also use any (even minimal) bad driving to come up with probable cause. They will also make you do Standardized Field Sobriety Tests (SFSTs), which a lot of people can't satisfactorily complete even sober.

Essentially, when you start making admissions, you start giving the officer what they need to prove their case against you. This is true in all kinds of cases, from summary disorderly conduct all the way up to assault and even more serious charges. DON'T DO IT!! Exercise your right to remain silent! Without your admissions, it makes it more likely for me, as your attorney, to be successful in winning your case. I can't tell you how many cases could have been won at suppression or even trial had the client just stopped talking.

What's the lesson here? To become a belligerent jerk with the officer? Absolutely not. The lesson is to provide minimal, basic, required information only. Limit any communication with the officer. You shouldn't lie, either. If a police officer asks you questions that could help them prove a case against you or that would be an admission of something potentially illegal, don't answer it. You're not required to. Be polite, be cooperative, but be quiet. Make the officer prove his case, don't prove it for him. When you don't have criminal charges against you, or they can't prove their case, you'll thank me.

About the Author

Jenna M. Fliszar, Esq.

Bar Admissions Pennsylvania United States District Court for the Middle District of Pennsylvania Additional Training Practitioner, Standardized Field Sobriety Testing Instructor, Standardized Field Sobriety Testing Drug Recognition Expert Training Forensic Chromatography Training Ad...

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