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Every person in American is entitled to the protection of our great Bill of Rights. One of the Rights that I have written about before is the Fifth Amendment Right to Remain Silent. The Mississippi Constitution of 1890 contains a Bill of Rights that parallels those in the United States Constitution. For example the Mississippi Constitution has a Right similar to the 4th Amendment (right to be free from unreasonable search and seizure), and rights like the 5th and 6th Amendments to the U.S. Constitution.
What you may not know is that the U.S. Supreme Court sets the “floor” through its interpretation of our Federal Bill of Rights. What I mean by that is when the U.S. Supreme Court tells the states how a right must be applied or enforced, the various states can provide greater protections to its citizens than offered by the federal interpretation, but they cannot give less. Does that make sense? Mississippi is one of those states that has on occasion provided greater protection through the Mississippi Constitution than is provided by the Federal Constitution. This fact alone is why when you are suspected of or charged with a criminal offense you need an attorney or team of attorneys who know both Federal and State Constitutional Law. A good example of a Mississippi Miranda case can be found here.
Let’s go back to your Right to remain silent. I believe this is one of the most valuable rights you can have if, and I say “if,” you use it correctly. I advise people all the time that the right to remain silent is yours to use, or lose. If you are approached by someone in law enforcement and you think for a second that they suspect you of a criminal offense, invoke your right to remain silent and ask for a lawyer. If the investigator says you are not under arrest then you don’t have to speak to him/her at all. You are free to go. You are not required to go down to the station and answer questions. It might make the investigator mad, or they make use subtle coercion to get you to talk, but you must insist on your right to remain silent or suffer the consequences. Furthermore, you should state clearly and unequivocally (without any doubt) that you want to speak with your lawyer. If you don’t have a lawyer tell the investigator you will get a lawyer and have the lawyer get in touch with him/her. If the investigator threatens to arrest you then you need to understand that may happen, but at least you will not be giving up one of your most important and valuable rights without first getting competent and experienced advice. When you get an experienced lawyer the two (2) of you can decide what the best choice for you.
I want people to understand something very clearly. First, law enforcement does not have to read you any rights if you are not under arrest. An Arrest can be a formal arrest or a situation where law enforcement has significantly deprived you of your freedom of movement by a show of physical force or mental coercion. Investigators often want to speak with you voluntarily. If you voluntarily speak with the investigator(s) they don’t have to read you any Miranda rights. Some investigators will read the suspect the Miranda Rights so they can be “doubly safe,” but if you are not under arrest, if you are free to leave, and you voluntarily talk, you simply cannot complain. You have only yourself to blame.
People come into our office all the time and when we ask to hear the story of why they need our help, they eventually say with incredulity “the officer/investigator did not read me my rights.” Well, we have to analyze the situation. Did the officer question you? If the answer is no, then he does not have to read you any rights. And if he does not read you any Miranda rights it does not void your arrest. If the officer did arrest you and failed to read the Miranda rights or failed to honor your request for a lawyer, it still does not void the criminal charge. A violation of the Miranda Rights simply means the statement you may have given can be suppressed or prevented from being used against you in the prosecution’s case. But let me warn you. Situations concerning Miranda rights and consents to search often come down to swearing matches in court. It is the accused’s word against the officer. You can think about how that usually turns out and when you do, I suggest to you that invoking your right to remain silent and your right to a lawyer is your wisest choice. Chose it and stick with it until you have spoken with an experienced lawyer. It may be ironic or not, but every law enforcement officer I have ever represented always wanted his/her rights. Why shouldn’t you as the accused citizen? Just think about it.
If you get stopped for a traffic violation you are not required to answer questions beyond the purpose of the stop. The law enforcement officer may ask question, but you don’t have to answer them. However I don’t know many people that know how to handle this situation without getting the officer irate or getting themselves irate. There are some very good ACLU videos available on line. Just Google the topic.
Once you invoke your right to remain silent you have to “stick to your guns.” The U.S. Supreme Court has issued an opinion that condones some forms of misrepresentation or what you might call lying to a suspect. The police can lie to you but if you lie to them then you are going to be charged with a crime. The Federal authorities use lying to a federal law enforcement officer as a very common crime to charge because Federal Prosecutors feel it is easy to prove. It frequently boils down to the accused’s word against one or more investigators. So, if you are going to invoke your right to remain silent and ask for a lawyer, you should not start any more conversations with the law enforcement officers or investigators. If you start a conversation it might be viewed as you initiating a new discussion and the officers can try to question you about a crime and you would have to invoke your rights again. This area of the law has gotten muddled in the last 20 years as the U.S. Supreme Court has attempted to diminish some of our rights. It is appropriate at this point to tell you there are no “off the record conversations with law enforcement.” If one of them tells you something like, “look, this is off the record, let me ask you one question,” and you believe it, come see me because I am going to sell you 5th Avenue in New York!
In summary I would suggest the follow:
• Anyone suspected of a criminal violation should consult with an experienced lawyer before talking with anyone in law enforcement.
• If you are asked any questions, invoke your right to remain silent and invoke your right to a lawyer.
• Don’t start new conversations with law enforcement or they can use this to say you initiated the conversation and they can try to question you again. (You would have to invoke your rights again.)
• Remember there are not “off the record “conversations. All statements can be used against you. (You can safely answer routine booking questions but you do not have to answer more questions)
• You do not have to voluntarily go down to answer question or answer them at your home or on the road. Request your lawyer and stick to that request regardless of the attitude of the law enforcement.
• Remember the police have a job to do. They are not trying to be your friend, unless it is necessary to get a statement or confession from you.
• If you want to cooperate with law enforcement, there is nothing wrong with doing it, but when it is done with an experienced lawyer.
This article is designed to help educate you on your rights. You have the RIGHT to abandon or not use your rights. I believe the best citizens are those who know their rights and can make a voluntary and intelligent choice on how to use their rights. There are some people that don’t think other people should be informed of their rights. These people say that law breakers may not cooperate with the police if they know their rights. I understand that is a risk. I believe if the innocent people who have been freed after decades in prison had exercised their rights, they would not have spent decades in prison. A long dead great United States Supreme Court Judge said: “It is better that 10 guilty people go free, then 1 innocent person go to prison.” I could not agree more.
The attorneys at Coxwell & Associates have a wealth of real experience helping people who have criminal charges or who have been seriously injured. Nowadays every law firm or advertisement touts the lawyer’s experience, but the attorneys at Coxwell & Associates show their experience through the cases listed on their web site. These cases show you a team of lawyers who “walk the walk and talk the talk.” A group of lawyers who have real experience representing judges, doctors, attorneys, Mayors, and hundred upon hundreds of ordinary hard-working people. If you have a criminal charge or have a serious injury due to someone or some company’s failure to follow the Rules of Safety, immediately call Coxwell & Associates.