(In honor of the annual shit show known as the bar exam, I’m posting some legal basics for the lay person in each of the major areas tested on the bar. This is all just what we call “black letter law,” as in simplified and pretty set concepts, and, as always, is not to be taken as legal advice.)
These are your rights when it comes to the government arresting you.
You all know the Miranda rights, right? (haha, see what I did there?) You have the right to remain silent and to an attorney. Well, that’s not as cut and dry as it sounds.
1. You have to be “in custody” and being questioned for the police to have to read you your rights. That means if they’re taking your statement as a witness, they don’t have to read you your rights first. So if you say something incriminating then, they can use it against you. There’s more technicalities about what counts as “in custody” and being “questioned,” because we’re lawyers and arguing over seemingly obvious terms are how we make our money. So if you were just saying stuff during a witness interview, your attorney (if there’s the tiniest basis for it) will argue that you were in custody and your statement should be tossed. And this is exactly what you want your attorney to do… because it may keep you out of jail.
To invoke your right to remain silent, you Must. Tell. Them! You actually remaining silent means they can keep questioning you. So speak up! But only to say after that you’re not going to be speaking 😉
If you want an attorney, again, speak up. You have to say clearly that you want your lawyer, that you will not say anything else without a lawyer present.
2. There’s a 5th amendment right to counsel and a 6th amendment right to counsel. The 5th one applies when you’re being interrogated by the police, before you’re arrested. The 6th applies after you’re arrested.
3. The 6th amendment right to counsel is specific to the offense(s) you’re arrested for. And you only get this right to an attorney for a felony trial or a misdemeanor one where imprisonment is actually imposed. Let me say that again because there are sooooooooo many people who think they get a lawyer for every tiny infraction. You don’t! One time a guy asked, actually he demanded, a lawyer for him fighting a traffic ticket. Yeah, I wish I was making this up.
So, tell them you’re going to be quiet (I know, kind of like telling someone you’re not talking to them)/ask for a lawyer. if you’re fighting a traffic ticket or you have a little misdemeanor with no jail time, don’t demand a lawyer, you will become a punch line.
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