Last week we discussed the wisdom of “remaining silent” in the face of police questioning. We discussed how the Supreme Court’s Miranda v. Arizona case places upon the police an affirmative obligation to advise a person in their custody of certain rights, among these being the right to say nothing at all.
To re-cap, it is usually a good idea to exercise this most important right, when faced with police interrogation involving anything at all of a serious nature. What the police might then call your “lack of cooperation” could lead to you spending the night in jail. This, however, is usually far preferable to incriminating yourself and (later on) spending many nights in jail.
The Right to Remain Silent is part of the “Miranda warning” which the police are supposed to give you upon your arrest. However, you have this right even before the police remind you of it. You conduct your day to day activities while cloaked with this critical protection. You do not need for an officer to advise or remind you of this right before it kicks in to protect you.
Another right you always have is the right to be represented by an attorney. Most people do not need an attorney to conduct their daily affairs, but events can and do sometimes occur for which you should absolutely seek legal counsel and protection. Being questioned by police on any sort of serious matter is surely one of those times.
Anytime a person is deprived of their freedom, the law will consider them to be “under arrest”, even if the police have not declared you to be under arrest, or have not yet filed charges against you. [There is no need for an officer to state “you are under arrest” before you are considered “arrested”. The test is whether a person in that circumstance, innocent of any offense, would consider himself free to leave that location and go on his way. If the answer to this question is “no” then the person is considered to be under arrest, triggering the requirement that police give the Miranda warning].
Anytime a person is deprived of their freedom, i.e. is under arrest, their right to be advised and represented by an attorney attaches. This means that police are not supposed to even question you until they have “read you your rights”. After that, unless you waive the right to remain silent and/or to have an attorney present, you are not to be questioned.
To assert your right to an attorney, you must clearly state that you want an attorney. For example, some NY courts have held that merely asking “can I call an attorney?” is not a sufficient assertion of your right to counsel so as to make the police questioning that followed improper.
Our advice in the event police questioning continues after initially requesting counsel is to make your subsequent requests respectfully, but in a loud and clear voice, hopefully within earshot of as many people as possible. If the police do not honor your request and stop questioning you, certainly the right to remain silent can be exercised, and your answers to questions should at that time stop (assuming you were previously answering questions, which violates our earlier advice).
(As the Miranda warning continues:) you have the right to be represented by an attorney during questioning (if you submit to answering questions) and at all subsequent stages of the proceeding. Once a criminal charge has been filed against you, now your right to counsel cannot even be waived without you first actually having access to an attorney (People v. Samuels, 49 NY2d 218 (1980)). This is a provision of the law which is somewhat unique to New York.
The above advice is necessarily general, and is intended to apply to as many situations as possible. Every case is a little different from the rest. My recommendation is that a person conducting business of any nature in our society must be aware of their rights at all times, even (and especially) before getting in trouble.
Our attorneys are always pleased to explain any of these concepts in a free consultation, whether before or after you have been accused of a crime or other serious offense. Feel free to call us anytime at 518-583-4600.