What To Do If You Are Arrested
- Hire an attorney as soon as possible and BEFORE you make any statements to the police.
- Be polite and courteous with police. Don’t give any reason to escalate the situation. Don’t complain about the stop or arrest or ague with the police. Stay calm and control your emotions. Stay in view of the officers, keep your hands in plain sight, and don’t make any quick or jerky movements.
- Ask if you are under arrest. If placed under arrest, you have the right to be told why you have been arrested. Also ask for the officer’s name and badge number and remember the patrol car number, if possible. If you are told you are not under arrest, ask if you are free to leave. If you can leave, do so.
- Do NOT give a voluntary statement. You are NOT required to talk to the police when questioned about a crime. Exercise your rights because you cannot be prosecuted for refusing to give a statement, but you can be prosecuted for giving a false or misleading statement. If you give a statement, it can be used against you. The Miranda warnings do NOT apply to voluntary statements. If you are not under arrest or otherwise ‘in custody’, then those statements can be used against you even without reading the Miranda warnings (‘your rights’) to you. Anything you say likely will be tape recorded or videotaped with or without your knowledge. To avoid problems and legal fees later, don’t give any voluntary statements. Likewise, do NOT discuss facts of an alleged crime with family members, friends, co-workers, spouses, children, your accountant, etc. There is no privilege to protect your statements to these persons, so exercise your right to silence.
- Do NOT resist arrest or touch the officer. Even if you are innocent, do NOT resist arrest. It will only add more charges and make your legal situation more difficult for your attorney. Do NOT touch or threaten the officer, as the police will add ‘assault & battery on an officer’ charges, which alone carries significant punishment. Do NOT run under any circumstances. If you run, innocent or not, the jury can be told you fled the scene.
- Do NOT interfere with or obstruct the police. Do NOT interfere with the officer’s investigation or interrupt the officer while he/she is interviewing others or searching. Generally speak only when asked (see above–do not give a voluntary statement) and do not assist in showing items or documents or explaining what happened. Do NOT attempt to obstruct the officers in their duties or to destroy evidence or contraband. Keep to yourself and mind your business. Interfering or obstruction of an officer in his official duty is a separate crime.
- Do NOT allow searches or seizures. The Fourth Amendment protects you from unreasonable searches and seizures. Unless an officer presents proper credentials and a search warrant. Do NOT allow any search of your body, home, garage, business, computer, car, boat, or other dwelling or conveyance or property. ONLY when the police have a valid search warrant signed by a judge is it appropriate to give permission to search. If there is a warrant, ask to read the papers before granting permission so that you know the scope of the warrant. Then ask the officers if you may watch as they search and ask to call your lawyer before the search. You never know whether your spouse, children, or perhaps a friend or acquaintance (or even a stranger) may have placed or left contraband or other evidence of a crime in or on your property. Although less likely, a “bad” cop could also “plant” evidence; therefore, NEVER allow a search UNLESS the officer has a warrant. If asked whether it will be okay to search, JUST SAY NO!
- Do NOT give any samples–body fluids, blood, fingerprints, handwriting, clothing, shoes, etc.The Fourth Amendment protects against unreasonable searches and seizures, and the Fifth Amendment protects against self-incrimination. While these samples may possibly be compelled by the court, do NOT give samples (1) without obtaining a lawyer to represent your interest, or (2) without a court order. Even with counsel, there are situations when samples simply should NOT be given. Samples given with your permission are admissible in court. Also be careful because forensic sciences are not without fault. There are numerous cases in Oklahoma (i.e., the Jeff Pierce/Joyce Gilchrist matter) and throughout the U.S. where innocent people have been wrongfully convicted and even sentenced to death on flimsy hair or other samples. BEWARE. There is one EXCEPTION to this rule — you are required by law to give a breath or blood test during a stop for an alcohol-related offense (DUI, DWI, or APC or an injury accident). If you refuse to give a test, it will result in loss of your driver’s license and could also impact a criminal charge.
- Do NOT take a polygraph or lie-detector test. A polygraph is NOT admissible in court. Even if you pass a polygraph, police will not necessarily clear you. Because there are ways to “beat” the test, the police will not rule you out after the test if you are a suspect.
- Do NOT give press interviews. Americans are naturally drawn to the spotlight when given an open microphone. You have the First Amendment right to free speech but consult your attorney BEFORE giving press or other interviews. Your attorney must weigh the options before commenting on the facts. There are times when it may be appropriate and recommended to cooperate with the press, but timing is everything. If contacted by media, you naturally will want to “clear” your name. Do not let the camera or reporter entice you. Your comments could end up on the editing room floor. Consult counsel first. Counsel must be media savvy to protect your interests in high profile or no-profile cases. Let them do the talking.
- Be truthful with your attorney. Your attorney cannot help you unless the attorney knows the facts. You may think you can “protect” your interests by withholding information from your attorney, but that generally results in your attorney being surprised at inopportune times, such as during a hearing, deposition or trial.
- No “right” to plea agreement. There is no right to a plea bargain under either prosecution or federal law. While most criminal cases in the United Prosecutions (perhaps 90-95%) are resolved by some type of plea (either with a plea agreement or by “blind” plea to a judge), the client has no entitlement to a plea agreement. Plea bargains are generally left to the discretion of the prosecutor in both prosecution and federal courts, but there are usually negotiable issues in any case. Judges reserve the right to accept or reject a given agreement — regardless of whether the parties reach an agreement. Also, in both prosecution and federal courts, there may be some statutory or constitutional limitations placed on the potential terms of the plea bargain. If the prosecutor is not willing to negotiate, there is no statutory or constitutional right to a plea bargain. If the client demands to enter a plea, he or she may plead “blind” to the judge (asking for mercy from the court) or take the matter to trial.
- Courtroom Decorum (How to Act in Court). When you appear in court you should be dressed appropriately and on time. That means that for men, you need to wear a tie and coat if you have them. If not, we need to discuss whether it is necessary to obtain them. For women, you need “business casual.” In any event, be neat and clean, pressed and polished. For all persons appearing in court, wear what would be appropriate for church or a special school event. In the courtroom, the judge is addressed as “sir” or “your Honor.” When answering questions, respond in a loud enough voice for the judge to hear you and always respond “yes sir” or “no sir” or “yes ma’am” or “no ma’am” or “yes” or “no, your Honor.” Show respect for the judge regardless of your personal opinion. The judge is either appointed or elected and deserves your respect in court.