What if the Police Haven't Read You Your Miranda Rights? Call You Still Take the 5th?
It doesn't matter. Police sometimes purposely don't read you your rights, for strategic reasons. If they don't, it doesn't mean you go free, it simply means that nothing that you say can be used in the prosecution's case against you. But what you say can still come back to haunt you - before or during trial. The fact is that you ALWAYS have the right to remain silent in the face of police questioning. And even when you're called as a witness in court, until and unless a judge rules otherwise. Clients always ask me, "won't the police think I'm guilty?" Sure they will, but who cares what the police think? They can't convict you. Neither can a DA, neither can the judge. The only way to be found guilty is if a unanimous jury finds you guilty. And your jury will NEVER hear that you invoked your right to remain silent. Bottom line is, your case doesn't get worse for you when you invoke your right to remain silent, it gets better! Taking the 5th strengthens your defense.
Why Not Deny It? What's So Bad About That?
Lots, possibly. For one thing, someone who was just arrested is way to emotional to sit down and carefully tell the police what happened. Remember what Dick Cheney did after he blasted his friend with a shotgun? He waited for 24 hours so he and his buddy would have time to concoct their story before he talked. (It also gave him time to sober up, but that's another story.) Secondly, you don't necessarily know exactly what the law is, and you may be admitting guilt by talking. Thirdly, you don't have all the facts, and under the law, the prosecution is obligated to disclose everything they have to the defense about their case, good and bad, and you as a defendant are not required to tell the prosecution anything. (Read about the Mike Tyson case herein, in Step 5) Lastly, why should you tip of the DA about your defense in advance? Why give them time to scrutinize your story? So they can prepare their cross-examination before you even testify in front of the all-important jury.
You're Too Emotional
While on a business trip to the desert, a client of mine called an escort service for some female company. A girl came to his room and they engaged in consensual sex for money. But a dispute arose about the amount he should pay, so the girl decided to get back at him and reported that she had been raped. She said that she had been there only to strip, but the man got carried away and raped her. The police were skeptical of her story for obvious reasons (Surprise - escorts do engage in sex for money). So to get his version, the police went unannounced to his hotel room. They woke him up, and asked him if he had called an escort service. The married man, overcome by fear and guilt, panicked and lied to the police. He denied having called anyone. This, of course, was easily disproved with physical evidence and phone records. And the man had thoroughly destroyed his credibility. The jury did acquit him, but had he taken the 5th, the DA probably wouldn't have even filed the case.
You Don't Know the Law
A landlord was accused of threatening and terrorizing a deadbeat tenant. He agreed to talk to the police because he felt he had nothing to hide. According to him, he hadn't threatened the tenant, he simply told the deadbeat tenant that he wouldn't report his drug activity to the police if he would just pay his rent. Unfortunately for the landlord, by waiving his right to remain silent, he confessed to having committed the crime of extortion. Yes, he denied committing the terrorist threats, but he admitted threatening to accuse a person of a crime unless he was given money, and that constitutes the crime of extortion (or blackmail). Even though the secret he threatened to disclose (drug dealing)was true. Had the landlord consulted with a lawyer before talking to the police, he wouldn't have admitted the crime of extortion and convicted himself, which is ultimately exactly what he did.
You Don't Know What the Police Know About the Evidence
A beauty queen accused Mike Tyson of rape. Not immediately after it happened though, so there was no physical evidence. Plus, the DA's case suffered a devastating blow. Luckily for him, Tyson testified before a grand jury. He could've taken the 5th, but his lawyer let him say that the sex had been consensual. Tyson had fallen into a trap. The girl's roommate had reported that the girl said, "That son of a bitch tried to rape me!" The DA saw that report and knew that a good lawyer could win the case by arguing that no sex occurred. Because of the long delay in reporting the rape, there was no physical evidence of sex. She'd said that Tyson "tried to rape" her, but probably meant that he "tried to have sex" with her, because if Mike Tyson tried to rape someone, he easily could have. But Tyson's lawyer never got to argue that, because he'd allowed his client to admit that they'd had sex -before the defense ever saw the "devastating" report. Mike Tyson had convicted himself.
Be Careful with Apologies
Not long ago in a local courthouse, a female lawyer abruptly left a judge's chamber after the jurist allegedly groped, kissed and fondled her against her will. This judge, who'd had twenty years' experience handling a criminal cases, presumably knew the difference between provable cases and unprovable cases. But in response to her rebuking his advances, and without thinking of the consequences, the judge actually called the young lady intending to apologize, and even left voice messages pleading for her not to report him! This is more than just an example of how stupid this judge was. It's an example of why no one should apologize. Had the judge calmly analyzed the situation, he would have realized that the young lady's word against his would not likely have been enough to convict him of anything. There were no witnesses, and no physical evidence. If he had said nothing, there would never have even been a case, and he'd still be on the bench (Ugh! - I'm glad he talked.)
Can You Confide in a Priest? Nope! Nor a Therapist, Spouse, etc. No One, Other Than a Lawyer
Don't say anything to anyone except your lawyer. That means no one. You should not discuss your culpability with a member of the clergy, a doctor, a therapist, a counselor or your spouse. All of these individuals can, and under certain circumstances, must testify as to what you said. In some circumstances, the very person upon whom you want to confide, such as a psychologist, counselor, etc., may be required by law to report what you say to the authorities, even if he is not questioned. The most common example is in child abuse or neglect situations, but that is not exclusive. If a person seeking treatment from a therapist admits that he has had inappropriate contact with a child, the therapist must report the conversation to the authorities. Clients often ask, "Can't a wife refuse to testify against her husband?" Not always. Not even usually. The bottom line is, say nothing to anyone except your lawyer.
Are the Police Allowed to Monitor Your Phone Conversations?
Yes, in California and most other states, the police may monitor and tape record private telephone conversations. If you're ever concerned that you might be accused of a crime (especially a sex crime), do not discuss the incident over the telephone. When an alleged victim of a sex crime reports the incident to the police, they often set up a "pretext" phone call. For example, they may have the alleged victim call a suspect and want to discuss their having had sex in the past. She may tell him that she is in pain, or angry or disappointed with him for what he did, or say that she needs something, such as money for medical expenses. These calls are called pretext calls, set up, monitored and tape recorded by the police, who hope that an unsuspecting person will unwittingly admit to the commission of the crime. If you ever feel you're the target of a pretext phone call, you shouldn't accept the call.
Jail Phone Calls, Snitches, and Other Problems
If you're in jail, never discuss your case with anyone, especially an inmate whom you don't know. Unscrupulous inmates will always sound very sympathetic, and claim to want to hear what you say about your case. But jail is the very worst place to make friends. Jailhouse snitches make deals, and offer to sell your statements to the prosecutors on their cases. This reprehensible conduct is allowed by law. And remember, telephone calls made from the jail and conversations during jail visits are tape recorded and monitored, even those to your spouse and family. Evidence of these conversations is also admissible against you in court.
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