Written by attorney James Murray Warden

Your Constitutional Right Against Self-Incrimination or How NOT to Bury Yourself

Over the course of my many years as a criminal defense attorney, I find that many people who have been arrested and accused of a crime do not understand or appreciate the value of understanding and exercising your constitutional rights. In particular, many people, confronted with police questioning, fail to exercise their constitutional right to request an attorney and not to incriminate oneself. In my 22 years of practice as a criminal defense lawyer, I have NEVER seen a statement made by someone accused of a crime that has helped that person walk free. I have seen defendants who have never been arrested before and those who have been through the system several times give statements to the police either with or without being advised of their Miranda rights. So, the first advise I give here is NEVER GIVE A STATEMENT TO A POLICE OFFICER. EXERCISE YOUR 5TH AMENDMENT RIGHT NOT TO INCRIMINATE YOURSELF!! This situation comes up in at least a couple of ways. The first is a police officer tells you that you are not under arrest, you are free to go and they just want to get your side of the story. DO NOT GIVE YOUR SIDE OF THE STORY. The only thing the police want is to catch you in a lie or to get you to confess to a crime that they do not have enough information to make an arrest. I had a client who the police had contacted and wanted a statement. We went to the police station and spoke to the officer. My client was not under arrest. The police asked this person his/her name. I agreed he could give it. The police asked where the person lived. I told him NOT TO ANSWER ANY MORE QUESTIONS. He did not answer. We walked out and he was never arrested. Clearly, the police wanted to get him to incriminate himself but they did not have enough information to make an arrest. If my client had answered anything more, then he most assuredly would have been arrested. SO, I REPEAT...DO NOT GIVE THEM ANY INFORMATION. DO NOT HELP THEM AT ALL. If you are arrested, then you may need to give information such as name and date of birth but do not talk about the crime that you have been arrested for and do not admit any gang affiliation. Your next question is how do I protect myself from making a mistake. If you are asked to speak to a police officer, simply say NO or NO, THANK YOU. You do not need to be rude or sharp but you must remain firm about this response. If you are arrested, and you are asked questions, you must tell the police that YOU WANT A LAWYER. If the officer keeps asking you questions, you must say "I WANT A LAWYER." Even if the officer does not ask you if you want a lawyer, you must say "I WANT A LAWYER." If the police leave the room and come back, you must say "I WANT A LAWYER." If the police tell you this is your only chance or if they lay out what they think they know, or if they do anything else, your response must be, "I WANT A LAWYER." One exception to this rule is when someone is pulled over and suspected of driving under the influence of alcohol or drugs. Even though the person, once pulled over, is not free to leave and is not yet under arrest, the Courts have consistently held this detention to be an investigative detention and the questions by a police officer about whether you have been driving, whether you have been drinking and, if so, how much and when, and other such questions, are not protected by the 5th Amendment since they are not the product of a custodial interrogation but rather a part of an investigative detention. It makes no logical sense but that is the law in California. Nevertheless, in the case of misdemeanor and felony offenses, DO NOT GIVE THE POLICE A STATEMENT OR ANSWER THEIR QUESTIONS. Politely refuse to answer questions, and insist on having a lawyer. This Fifth Amendment Right to Not Incriminate yourself is in the Constitution for a reason. It is there to PROTECT YOU. SUMMARY: DO NOT GIVE STATEMENTS OR INFORMATION. TELL A POLICE OFFICER, WHETHER YOU HAVE BEEN ARRESTED OR NOT, YOU WANT A LAWYER.

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