Save your confession for your Deity

In the criminal justice system, understanding and exercising your rights is important. Prior to any custodial interrogation by law enforcement, the person being interrogated must be informed of their rights. This is commonly known as your Miranda warnings. If you have watched a television crime show, chances are you are already aware of your rights. Even so, you must be informed that:

  • You have the right to remain silent, and anything that you say (or do) can be held against you in a court of law;
  • You have the right to have counsel present at the interrogation;
  • If you cannot afford counsel (you are indigent) the court will appoint counsel to represent you during interrogation.

The purpose of your Miranda warning is to ensure that any statement made by you, which is incriminating, is voluntarily made, and therefore admissible as evidence against you. This is because you have a Fifth Amendment right against self-incrimination (pleading the 5th is refusing to incriminate yourself). To be admissible as evidence against you, your statements (or confession) must be voluntary. Once Miranda warnings are provided, you have a choice: You can either waive your rights and participate in the interrogation, or you can exercise your rights and remain silent. If you decide to exercise your rights, you should insist upon discussing the matter with an attorney prior to interrogation.

Not all arrests require a Miranda warning. If you are arrested, and the officer is not asking you questions that would lead to incriminating information, Miranda warnings are not required. Also, if you are interrogated at work or at home, Miranda may not be required. The distinction is whether you are free to leave. Two simple questions can clarify whether Miranda is necessary. First, ask the officer whether you are under arrest. If he informs you that you are not, then ask whether you are free to leave. If you are free to leave, then Miranda is typically not applicable.

Once your interactions with law enforcement become accusatory, it is time to exercise your rights. The best advice is to stay silent until you know why you are being questioned. It does not matter whether the interrogation is custodial or noncustodial in nature. In either event, your rights are the same. The only real difference is whether you are free to leave if you so choose.

What are those rights again? You have the right to remain silent. If you give up that right, anything that you say or do can be held against you in a court of law. You have the right to an attorney, and if you cannot afford one, the court will appoint one for you. These rights all boil down to a Constitutional protection found in the 5th Amendment-the right against self-incrimination. Specifically, the United States Constitution prohibits a person from being compelled to be a witness against himself in a criminal case.

When you attempt to exercise your rights, you will likely be told “lawyering up makes you look guilty,” or “if you cooperate, this will all be easier.” Understanding the paramount importance of your rights often comes too late. While the officer may be correct, in the eyes of law enforcement that pleading the 5th looks like guilt, your refusal to incriminate yourself is NOT admissible in a court of law. If your case goes to trial, the prosecutor will not be permitted to comment on the fact that you did not testify, or the fact that you refused to discuss the matter with law enforcement. Pleading the 5th is an absolute right, and no negative inference is permitted from the exercise thereof. Of course, the officer will tell you that this will all go easier if you will just cooperate. There is a distinction between cooperating and self-incrimination.

Ironically, an interrogation can often lead to charges other than the ones originally contemplated by the officer. Remember, your voluntary statements can be used against you. This is not limited to the event being investigated. All incriminating information gained through the interrogation could result in criminal charges. For instance, the officer could be trying to determine your location on a specific date, so that he can include or exclude you as a suspect. To illustrate, following a robbery, you are picked up as a person of interest (apparently you drive a red car, and a witness saw a red car leave the scene of the crime). The officer asks you, “where were you at approximately 9:00 p.m.?” You ask why, and determine two things. First, that the officer is the one asking the questions, and two, that the officer is investigating a robbery. To alibi yourself, you inform the officer that he has the wrong guy. You were at a friend’s house, engaged in an illegal recreational activity. You are not a bad guy, and the officer is looking for a dangerous criminal, not a person who wasn’t hurting anyone. What harm can come of it? After all, why would the officer care that you were engaged in activity that is legal in Colorado? The next thing you know, you are trying to call friends and family to post bond for you, and you are facing criminal charges, fines, court costs and quite possibly attorney fees. All because you decided to waive your rights and “make things easier.”

Make no mistake about it. The officer’s job is to investigate alleged criminal conduct. His job is not to prosecute you. His job is not to be your friend. His job is not to “make things easier on you.” His job is to determine whether a violation of law has occurred, and to collect evidence which would support a conviction. Once convicted, the court determines your punishment, not the investigator. If you feel a need to discuss the criminal allegations, might we suggest saving your confession for your deity, and seeking legal representation? Discussing your situation with an individual who must hold your confidences will allow meaningful consideration of your potential criminal culpability.

If you decide to answer questions, understand that you can invoke your rights at any point during questioning, and the investigator must respect your decision. If this is a custodial interrogation, the officer already has reason to believe you committed a crime. While he might be mistaken, your attempt to show him that you were not involved could lead to unrelated criminal charges. An attorney can help you limit your responses to what is necessary to clear your name, thereby keeping you from inadvertently giving a confession for something that you did not do. Also, an attorney can keep you from admitting guilt in a situation where your actions might have been justified, and therefore, lawful.

Attorney Brad Hawley

Attorney Brad HawleyAttorney Brad Hawley possesses years of practical experience focused on bankruptcy, civil and criminal defense. He has prosecuted and defended clients in state court, and is a former enlisted member of the United States Army. Brad is driven by his desire to help people that have been hurt by the legal system, and is dedicated to fixing injustices he sees around him. [ Attorney Bio ]

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