Criminal Law

Speaking Up for the Right to Remain Silent

They showed it best in the grainy black and white movies: A bare light bulb dangles from the ceiling, casting stark shadows on a haggard face. Sweating and exhausted, the suspect cracks. At long last the hard-edged cop gets what he has waited days for: A confession.

No more, said the US Supreme Court in an April 2009 ruling. The FBI had held and questioned a robbery suspect for two days. The Court said that interrogation involving isolation and pressure causes innocent people to give involuntary confessions. The Court held that a person charged with a federal crime can't be held and questioned more than six hours without being brought before a federal Magistrate Judge.

Police Interrogation Has Its Limits

Over the years, police interrogation in the US has come under scrutiny for interfering with the fundamental rights of people - presumed innocence, to be free from unreasonable searches and seizures and free from self-incrimination. What was once applauded in the old detective movies as "tough" is now viewed as unfair and inhumane.

If you're questioned by police, remember that you are not required to respond to questions posed to you, but always have the right to remain silent. There are serious legal outcomes to being persuaded to confess to a crime, and it's always preferable to speak with a lawyer before confessing. Serious consequences can result from making seemingly harmless, joking comments in order to "ease the tension" with a police officer. Any comments you make will be documented and, worse, can be misquoted or misconstrued.

Basic Rights When Questioned or Arrested

Nearly every American has heard of "Miranda rights" What most people don't realize is that the suspect in the Miranda case was arrested for a heinous crime, and was set free because the police had not given him the required warnings, "You have the right to remain silent, as anything you say can and will be used against you in a court of law. You have the right to an attorney, and if you cannot afford an attorney one may be provided for you..." and so on. It's sometimes said that the mark of a civilized society is the degree to which even the most despicable of persons are treated fairly. And so it was that the Miranda case, decided in 1966, led to the now-routine list of warnings given by police.

You probably can't envision yourself under a bright light in a police interrogation room. Yet our fundamental rights - including the right to remain silent - apply to everyone arrested and taken into police custody, for any offense, such as DUI. Making a confession to any offense - in writing or verbally - is an extremely serious matter which should never be taken lightly. Many people don't know what consequences will flow from a confession. It could lead to a guilty finding, which, in the case of a DUI, could lead to a suspension or revocation of your driver's license.

Court Decisions Have an Impact

Cases from one court location or type of court (federal vs. state court) can impact the decisions of other courts. When a court is required to follow a higher court's decision, it's known as a "precedential" or "binding" decision. When a court is not required to follow the decision of another court, it's "persuasive" authority and can be influential, even though it's not binding.

State courts (i.e., the judges in your local county courtroom) are not obligated to follow the decisions of federal courts, but those decisions might be persuasive to them. Federal court cases are those which are cases against persons of two different states, or involving federal laws. Traffic charges and minor criminal charges are most often in state courts.

The Supreme Court's ruling on the six-hour time limit was described by the Court as being limited to federal charges only. A Supreme Court decision in 1991 defined a maximum delay of 48 hours before a criminal suspect is brought before a judge for a preliminary hearing (thus leading to judges holding weekend and holiday bond hearings).

Decision Could Result in Quicker Hearings

The result of the recent decision is that local police departments may well err on the side of caution to bring suspects before a judge sooner rather than later, to avoid the risk of a confession being thrown out as not voluntary or pressured.

Questions for Your Attorney

  • If a court sets a limit on when and how the police can question someone, or how they must proceed once someone is taken into custody, is it a strict limit? Does it depend on the facts of a given case?
  • If someone thinks the police aren't following proper procedures during questioning or in detaining him, should he object, or just stay silent until a lawyer can be contacted?
  • If someone's being questioned or detained, how quickly do the police have to act in allowing him to contact a lawyer? Is it truly one phone call allowed?
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