There are many misconceptions about our criminal justice system. But the more you know about how the system really works, the better you’ll assert your rights and protect your interests when confronted with it. This list contains information and advice which I hope you can use to help avoid the common pitfalls and unpleasant surprises that may plague a person, both before and after their arrest.
1. You don’t have to obey a police request.
2. You should always comply with police commands.
3. “Consent” is often a police officer’s only lawful option to support a search.
4. There is no value in arguing your case with the police.
5. Police investigations are designed to get convictions, not find the truth.
6. The police do not have to advise you of your rights when arresting you.
7. You must speak-up to assert your right to remain silent.
8. If you know that a warrant was issued for your arrest, the best thing is to turn yourself in.
9. You have no constitutional right to make a phone call from jail.
10. If you are allowed to make a call, keep it short and stick to the immediate facts.
11. Once you are arrested, there (still) is no value in arguing your case to the police.
12. The more you talk about your case, the more you put the outcome at risk.
13. The State decides whether to prosecute a case, not the alleged victim.
14. Ignorance of the law is not a defense.
15. Innocence is not a basis to for a motion to dismiss.
16. Your good character generally is irrelevant to your defense at trial.
17. You are not allowed to speak to the judge about the facts of your case.
18. A plea agreement is not a “get out of jail free” card.
19. A criminal trial is not a quest for the truth.
#1. You don’t have to obey to a police request.
In any police encounter it’s important to respect the authority of law enforcement. But it is equally important to protect your constitutional rights. If a police officer asks you to provide information or perform an action, you should always clarify whether the officer is giving a command or making a request.
Police officers are trained to get citizens to relinquish their rights by disguising requests in words that sound like orders. For example, the officer might say something like: “Ma’m, I need you to come down to the station so we can speak about what happened earlier tonight.” However, what he’s really saying is: “I would like for you to come down to the station and speak to me so I can obtain evidence that will be used against you in court.”
When dealing with police it’s appropriate to ask politely: “Officer, are you asking me or are you ordering me?” If you are being asked (not ordered) to provide a statement or perform an action, you should respectfully decline and ask to leave (or ask the officers to leave). Then you can discuss the situation with your lawyer.
#2. You should always comply with police commands.
It may surprise you to learn that it’s illegal in virtually all jurisdictions to disobey police commands, even if the police are illegally detaining or arresting you. This rule exists to discourage people from engaging in physical confrontations with police officers. If a police officer commands you to perform an action or moves to place you under arrest, it’s important you fully comply with those orders. Never argue with or confront the police on the street. As soon as you are able, contact your criminal defense attorney to take appropriate legal action against the offending officer.
#3. “Consent” is often a police officer’s only lawful option to support a search.
Whether the police ask to search your home, your vehicle, or your pockets, do not consent. The 4th Amendment to the U.S. Constitution prohibits unreasonable searches and seizures in our criminal justice system. It requires that police obtain a warrant before conducting a search. Over time, numerous exceptions to the warrant rule have been approved. Consent is the ultimate warrant exception. If the police have no other legal grounds to conduct a search, they will ask for your permission. In other words, if the police ask for your permission to search, it means they probably have no other legal basis to support the search. Say no. Be polite, but firm, and tell the officer: “I do not consent to a search. I have done nothing wrong, and I would like to help you, but my attorney has advised me never to consent to a search.”
#4. There is no value in arguing your case with the police.
If a police officer is serving an arrest warrant on you, it does not matter if the officer thinks you are innocent or guilty. The warrant gives him legal cause to arrest you. If the officer initiates the arrest without a warrant, he obviously thinks you’re guilty or he would not be arresting you. When you try to argue your side of the case to the arresting officer, at best you are wasting your breath. At worst, you are making incriminating statements that will cause problems for you later. What you say to the arresting officer can be held against you. The best course of action is to remain silent.
#5. Police investigations are designed to get convictions, not find the truth.
Police officers are trained to do one thing when investigating a crime – obtain evidence for use in a criminal prosecution. If the police ask to interview you or search your property in relation to an ongoing investigation, they are almost certainly attempting to obtain statements and evidence that can be used to justify your arrest and eventual conviction. Police officers will make statements like: “We’re just trying to understand what happened.” But their actual goal is to solicit facts to use against you. Never speak to investigators without your attorney present. Your silence does not need to provoke suspicion. Simply state: “I haven’t done anything wrong and I would like to help you, but my attorney has advised me never to talk to the police without my attorney being present.”
#6. The police do not have to advise you of your rights when arresting you.
It’s a common myth that police are required to advise you of your rights at the time of your arrest. The truth, however, is that the police are only required to advise you of your rights if they plan to interrogate you while you’re in custody (called a “custodial interrogation”). Consequently, if the police approach you on the street and question you, then later place you under arrest, the answers you gave prior to arrest may be admissible in court. A related misconception is if the police don’t advise a person of their rights immediately, then all charges will be dropped. Again, this is simply not true. The remedy for a failure to advise a suspect of their rights prior to custodial interrogation is to exclude the suspect’s statements (including any “confession”) from the trial, not to dismiss the charges.
#7. You must speak-up to assert your right to remain silent.
We know that we have the right to remain silent in the face of police questioning. However, you must affirmatively assert this right – or you risk losing (or
“waiving”) it. In other words, you must speak-up and make known your choice to remain silent. Therefore, if you are questioned by the police, do the following:
(a) Tell the officers you do not want to talk to them;
(b) Ask if you are free to leave. If the answer is “yes,” then leave immediately and call an attorney as soon as possible;
(c) If you are not free to leave, then reassert your choice to remain silent and request an attorney. Say: “I do not want to talk or answer questions. I want an attorney;” and
(d) Be quiet! Say nothing else until you have conferred with a criminal defense attorney.
Regrettably, many people are over-confident and believe they can explain everything away when questioned by the police. This seldom, if ever, works. Instead, be firm and respectful in asserting your right to remain silent. If the officer thinks they have enough evidence, you will be arrested regardless of whether you answer their questions or not. Accordingly, assert yourself at the beginning of the police encounter. Do not wait to be arrested.
#8. If you know a warrant was issued for your arrest, it’s best to turn yourself in.
You gain nothing by waiting for the police to come and take you into custody. When you turn yourself in, you may avoid the circuitous route and longer wait to see a judge that most arrested persons must endure. Additionally, you establish a level of credibility and make a stronger argument for a low bail. If, on the other hand, you try to avoid the warrant and wait for the police to come looking for you, they will find you and they also may find evidence of criminal activity not related to the warrant. For example, assume the police have a warrant on John Smith for misdemeanor assault. The police spot John’s car and stop the car to serve the warrant. In connection with the stop, the officers find illegal drugs and an illegal weapon. Now, instead of dealing with a misdemeanor assault charge, John is dealing with weapon and drug charges, as well. If a warrant has been issued for your arrest, take the following steps:
(a) Consult with an attorney. Your attorney can call the police and arrange for you to turn yourself in and accept service of the warrant;
(b) Arrange for the funds you will need for bail; and
(c) Make sure you have nothing on you (e.g., drugs or drug paraphernalia or a weapon). This will only create additional problems.
#9. You have no constitutional right to make a phone call from jail.
Criminal defendants will often complain the police failed to honor their “right” to make a phone call. There is no such thing as a right to make a call immediately after arrest. State laws or administrative rules might require the police, jail, or a lock-up facility to permit an arrested person to make a call, but the Constitution does not.
#10. If you are allowed to make a call, keep it short and stick to the immediate facts.
This is critical since virtually all police stations and jails record these phone calls and the prosecution surely will obtain a copy of the recording. During this initial phone call, do not discuss the circumstances leading up to and surrounding your arrest. Do not argue your innocence or try to explain how you ended up in jail. Rather, simply state the charges against you (if you know) and where you are being held. Ask for help in finding a criminal defense attorney. Give your friend or loved one enough information to locate you, but nothing more.
#11. There (still) is no value in arguing your case to the police.
As noted above, during a police encounter, there is no value in arguing your case to the arresting officer. The same holds true after arrest. Following your arrest, the police may spend some time questioning you. The point of this interrogation is to gather information for the prosecutor to use against you, and maybe even get you to confess. The interrogating officer might offer to drop certain charges or promise to go easy on you or get you a better deal if you just tell them what they want to hear. Don’t believe it! In general, if the police had sufficient evidence against you to go forward with the case and obtain a conviction, they wouldn’t be offering you a deal.
Moreover, the police officer sitting across from you in the interrogation room has no real power to cut you a deal or drop the charges. Although the police can make recommendations, the prosecutor determines: (a) whether the government will offer you a plea bargain; and (b) what the terms of that bargain will be. Therefore, when a police detective promises you will get a particular deal, you cannot rely on that promise. Accordingly, don’t make a deal or sign a confession before you talk with your attorney. Tell the interrogating officer you are exercising your right to remain silent and then remain silent.
#12. The more you talk about your case, the more you put the outcome at risk.
This is a big one! Perhaps the most common mistake made by criminal defendants in our criminal justice system is talking about their case. The key to avoiding this mistake is simple in theory. But in reality, is often easier said than done. Do not discuss your case with anyone other than your criminal defense attorney. If you are being held in custody, cellmates may be police snitches or may be willing to turn state’s evidence to get a better deal for themselves. Conversations on jail telephones are monitored and recorded. If you say something over the jail telephone, assume the prosecutor will hear about it. Plus, jail staff typically read incoming and outgoing inmate mail.
If you are out on bail, your family members and friends may want to know what happened. You surely will be tempted to explain why you are not guilty. Resist that temptation! Even seemingly harmless statements you make to trusted friends and family members can be used against you in ways you didn’t expect. Simply say: “My attorney says I cannot talk about the specifics of the case with anyone.”
Finally, “talking” about your case includes posting information about your case on social media. Regardless of how unfairly you have been treated, or how well your case is going, keep it to yourself. When you post on social media, you may inform the prosecution of something about your case they did not previously know, or inadvertently reveal a violation of your bail or other release conditions. Again, your attorney is the only person with whom you should discuss your case.
#13. The State decides whether to prosecute a case in our criminal justice system, not the alleged victim.
People mistakenly believe they cannot be prosecuted for criminal acts unless the alleged victim chooses to “press charges.” This is completely untrue. The prosecuting authority, usually the State or District Attorney’s Office, makes the decision as to whether or not suspected criminal acts will be prosecuted in our criminal justice system. Similarly, alleged victims cannot “drop” the charges. Often, the prosecutor will listen to the wishes of victims and their families, but the decision to abandon a case lies with the government. In addition, many prosecution offices have strict “no drop” policies with respect to certain crimes, like domestic violence, and will never dismiss a case based on the wishes of the alleged victim.
#14. Ignorance of the law is not a defense.
“I didn’t know [certain conduct] was illegal,” is not a defense to the charges against you. Neither the police, the prosecutor, nor the judge cares what you know or don’t know about the law. It is presumed that all people within the jurisdiction are aware of the law. Claiming you were ignorant of a specific provision, which you are now charged with violating, will not allow you to escape criminal liability.
#15. Innocence is not a basis for a motion to dismiss.
Criminal defendants will often request their case be dismissed because they’re innocent of the charges against them. However, a pre-trial motion to dismiss – that is, a formal request to the court to dismiss the charges – must be based on one of a very few, narrowly defined, technical reasons for dismissal (e.g., the time allowed to file charges has expired or the court has no jurisdiction over the case). Your claim of innocence is not a valid reason for a dismissal motion in our criminal justice system. If you didn’t do what you are accused of doing, then you must plead “not guilty” to the charges and request a trial. It will then be up to the trier of fact, either a judge or jury, to review all of the evidence and determine whether you’re guilty or not guilty.
#16. Your good character generally is irrelevant to your defense at trial.
While character witnesses may be extremely helpful at a bail hearing or a sentencing hearing, they are almost never allowed in criminal trials. Subject to a few limited exceptions, character evidence is generally inadmissible in court. The issue at a criminal trial is limited to whether the accused did the specific thing they are accused of doing. Evidence that you’re a “good person,” or that your accuser is a “bad person,” is generally irrelevant and will be excluded by the judge.
#17. You are not allowed to speak to the judge about the facts of your case.
You may wish to write a letter to the judge, or speak with the judge about the facts of your case, but this not permitted. It is strictly forbidden to communicate with the judge about a pending case, off the record, in our criminal justice system. The judge will disregard any letters sent to them or statements made by you professing your innocence. Blurting out facts about yourself or the charges against you could actually damage your case. Moreover, these letters usually end up in the hands of the prosecutor. Let your criminal defense lawyer be your voice in communicating with the judge.
#18. A plea agreement is not a “get out of jail free” card.
Most criminal cases are resolved through plea deals. It is likely that, if arrested, you will be offered a plea deal. And chances are that your best interests will be served by taking some kind of deal. Be sure, though, that you understand what you’re agreeing to and what will be required of you. A plea deal is not a “get out of jail free” card. Often, plea deals come with substantial financial requirements. In addition, you may be subjected to a curfew and travel restrictions. Drug testing may also be part of a plea deal. If you think you’ll have trouble complying with the terms of the agreement, you may be better off rejecting a deal and going to trial. Significantly, probation violations are easier to prosecute than the original crime and the punishment can be even harsher.
#19. A criminal trial is not a quest for the truth.
Contrary to what you may believe, the jurors in our criminal justice system are not obligated to collectively piece the evidence together until they arrive at “the truth.” It’s not their job to “solve” the case. Rather, the jurors’ only job is to determine whether the government, as represented by its prosecuting attorney, has met its burden of proving your guilt beyond a reasonable doubt. To put it another way, you don’t have to prove your innocence, the prosecution must prove your guilt beyond a reasonable doubt. Practically speaking, “beyond a reasonable doubt” means that, after hearing all the evidence, the jurors must be truly and steadfastly convinced that you are guilty of the crime charged. This is a heavy burden.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.