If You're Arrested
- If the police question me, should I answer them?
- If the police want to search me, my home or my car, should I give them permission.
- If I feel that the police do not have reasonable grounds to arrest me, can I legally resist?
- When should I contact a lawyer?
- Should I hire my own lawyer if the court will appoint me an attorney for free?
- Should I hire a former prosecutor?
- Am I entitled to a telephone call?
Frequently Asked Questions
- The police never gave me my Miranda rights, is this grounds for dismissal of the charges?
- How does a judge decide on what punishment to give a defendant?
- What is “proof beyond a reasonable doubt”?
- What is the presumption of innocence?
- How can defense attorneys help guilty persons evade justice?
- How much do lawyers charge?
- If I’m innocent but stand accused of a crime, do I really need a lawyer?
- Does the Criminal Justice System Work?
Arrest
Q: If the police question me, should I answer them?
A: Probably not.
An individual being questioned by the police may feel pressure to cooperate with them. The police often encourage a suspect to unburden himself by holding out the possibility that by cooperating, the suspect can untangle himself from the potential criminal charges. This is a common technique used by the police. The police have no intention of helping suspects. Often times, the police – lacking evidence with which to secure a conviction, can only obtain a conviction by compelling a suspect to incriminate himself. Many individuals, desperate to improve their situation, talk to the police, thereby drastically reducing their chances of an acquittal at trial. The police are not interrogating you in an effort to improve your position, they are trying to solve the crime – and at your expense. Resist the temptation to speak with the police without first having contacted a criminal defense attorney. Instead, inform the police of the following:
- that you are exercising your right to remain silent;
- that you are exercising your right to speak with an attorney before submitting to questioning;
- that you want to exercise your right to make a telephone call. (The police will not normally limit you to only one telephone call).
If the police continue to question you, say nothing. I have had clients inform me that when they insisted that they wanted to speak with a lawyer before further questioning, the police pressed the client to waive that right. Some detectives have told suspects that a lawyer would only make matters worse and that they, the detectives, were the only ones empowered to help the suspect. Detectives have often lied to suspects about the evidence that they have gathered. In an effort to break a suspect’s silence, detectives have been known to tell him that they have recovered his fingerprint from the crime scene. These tactics are not uncommon. The fact that you refused to speak with the police cannot be used against you at trial. Do not panic and do not allow the police to bait you into breaking your silence.
Q: If the police want to search me, my home or my car, should I give them permission.
A: Not unless they show you a search warrant.
The 4th Amendment to the United States Constitution guarantees you, as a citizen of this great nation, the right to be free of unreasonable searches and seizures. If the police violate your rights under the 4th Amendment, all the evidence that they have obtained as a result of this illegal search and seizure is not admissible against you at trial.
If the police ask to search you, your home or your car, say loudly and clearly that you do not give them permission to conduct the search. They may search anyway. But at least you have not given your consent to the search. If you consent to the search and the police find evidence of a crime, it is unlikely that any court will find that the police violated your rights.
Cooperate with the police at your peril.
Q: If I feel that the police do not have reasonable grounds to arrest me, can I legally resist?
A: No. It is a mistake to resist arrest or to argue with the police officer.
It is against the law to resist arrest; even an unlawful arrest. If you offer any resistance to the arrest, the police will likely subdue you -- if not brutalize you, and charge you with resisting arrest, assault & battery on a police officer, and being a disorderly person. At trial, the police will exaggerate your smallest protest or resistance in an attempt to justify their conduct and make the jury dislike and convict you.
Q: When should I contact a lawyer?
A: At the first possible moment.
The earlier you contact a lawyer the better your prospects are for avoiding a conviction. Most criminal defense lawyers use answering services during their off hours that will contact them at home in the event that a client needs emergency assistance. The first few hours of an investigation or following an arrest can be critical. During their initial investigation, the police may have settled on an individual that they believe committed the crime. However, in an effort to postpone giving that individual his rights – possibly prompting him to call a lawyer – the police will claim that they had not yet reached a decision to arrest the individual. Believing that he can still talk his way out of this jam and feeling that by contacting a lawyer he will only heighten the suspicion he’s under, the individual refrains from retaining a lawyer and just keeps on talking. Only when he has securely fitted the noose about his own neck and can do himself no further harm, will the police inform the suspect that they are placing him under arrest.
Q: Should I hire my own lawyer if the court will appoint me an attorney for free?
A: Hire your own lawyer.
Most court appointed attorneys are young and inexperienced. They are paid between $30.00 and $54.00 per hour to represent you. To run a law office staffed with a secretary costs a lawyer at least $50.00 per hour. Just to make their rent, these lawyers are forced to carry an overwhelming case load. Many hope to gain some courtroom experience and to move onto more lucrative work as they expand their law practices. If you decide to retain your own lawyer, select a lawyer that specializes in criminal defense. A lawyer who spends his day drafting wills, probating estates and researching contract law will be viewed by the prosecutor as road kill.
Q: Should I hire a former prosecutor?
A: Unless he’s had enough time to learn how to defend people, the answer is no.
Prosecutors spend a great deal of time in a courtroom. They try many cases. They usually enjoy very high conviction rates. Unfortunately, a prosecutor is accustomed to having every advantage. He runs downhill. The trial judge sides with the prosecutor on almost every evidentiary point. His witnesses, usually police officers and detectives with many years of trial experience, are well trained and make strong impressions on the stand. Only when that same lawyer leaves the safety of the district attorney’s office to defend people he formerly persecuted will his trial skills be tested. He will no longer have available to him a regiment of detectives willing to pursue his leads. The establishment will no longer reflexively accommodate his needs. He will no longer enjoy the same presumption of credibility before the jury. Now, he’ll have to overcome the suspicion with which jurors typically view defense lawyers and earn their trust. It will be a difficult transition for him.
Q: Am I entitled to a telephone call?
A: Yes. The police are obligated by law to inform you, at the earliest possible moment, of your right to use the telephone and must make the telephone available to you within one hour of your arrival at the police station.
The original version of the law (G.L. c. 276, § 33A) directed the police to inform a detainee "of his right to so use the telephone immediately upon being booked." The Supreme Judicial Court interpreted the original to require that ". . . due diligence shall be used to inform the arrested person with reasonable promptness" of his right to make a telephone call. Commonwealth vs. Bouchard, 347 Mass. 418, 419-420 (1964). Recognizing that the police had begun to ". . . postpone the right of access to the telephone by delay in booking," the Legislature amended the statute to require notification upon arrival to prevent the police from frustrating the statute's goal of prompt notice. By adopting the present version, the Legislature demonstrated its resolve to end the police practice of detaining and questioning a suspect at length, and possibly securing his confession, before advising him of his right to contact the world outside. The statutory language, and the legislative intent behind it, are unequivocal: the detainee must be advised of his right to make a telephone call before substantive questioning is initiated.
When the police have refused a defendant use of a telephone, the Supreme Judicial Court has acted decisively. Acknowledging the ability of police to undermine 276, § 33A, the Supreme Judicial Court held in Commonwealth vs. Jones, 362 Mass. 497, 503 (1972) that ". . . in order to make [276, § 33A] an effective piece of legislation, courts should suppress unfavorable evidence gained as a result of denying a defendant the right to use a telephone."
Frequently Asked Questions
Q: The police never gave me my Miranda rights, is this grounds for dismissal of the charges?
A: No, but it may provide a legal basis for your attorney to file a motion to suppress any statement you might have made while in custody.
Before questioning or interrogating a citizen that is “in custody,” the police are required to advise him of his rights. If the police question a citizen that they have arrested or detained without first giving that person the Miranda warnings, the defense lawyer should file a motion to suppress any statement given by the suspect. If the suspect gave no statement, there really is no available remedy.
Q: How does a judge decide on what punishment to give a defendant?
A: The question suggests that judges reach such important decisions by using a reasonable methodology, rather than relying strictly on some personal moral code.
It is difficult, if not impossible, to reconcile how judges sometimes justify wildly divergent sentences for seemingly identically situated defendants. The Commonwealth has put out guidelines. The guidelines are not, of course, mandatory. Some sentences are mandated by statutes that have “mandatory minimums,” like many drug offense statutes. As a general rule, judges weigh: (1) the harm done to an individual or the community as a whole by the defendant, (2) the length, if any, of the defendant’s record, and (3) whether the defendant pled out or exercised his right to a trial. As unseemly as it is, judges routinely heap additional punishment on a defendant who makes the Commonwealth prove its case against him. The judges never admit that they “make the defendant pay the price for seeking a trial.” They do at times, nevertheless, impress upon defense lawyers in chambers that the defendant might be in “for a rude awakening” following a guilty verdict.
Q: What is “proof beyond a reasonable doubt”?
A: Proof beyond a reasonable doubt is evidence produced by the government that is so convincing in both quality and quantity that it absolutely convinces each of the six or twelve jurors of the accused's guilt.
Unfortunately, in Massachusetts, there is no “required” definition of “beyond a reasonable doubt.” Judges routinely give the Webster instruction, which does little to illuminate the high level of required proof required for conviction. The Webster Court defined it as that “state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty, of the truth of the charge.” The Federal charge is better. In short, the government has proved its case beyond a reasonable doubt when it has produced evidence so compelling that each and every deliberating juror can say unhesitatingly and without any reservation that the defendant is guilty.
Q: What is the presumption of innocence?
A: Because of our healthy distrust of the government, our understanding of the ease with which one can make an accusation, and our recognition of the near impossibility of proving a negative (innocence), we presume the accused citizen innoncent of every charge unless and until the government convinces our community representatives (the jurors) of his guilt beyond a reasonable doubt.
At one time, governments accused a person of a crime and required him to prove his innocence. The accused was presumed guilty. It is, at times, impossible to prove a negative. In the United States, the accused enjoys the presumption of innocence. The accused is not only not required to prove his innocence, but he is not under any obligation to produce any evidence. He is not required to take the stand and his decision not to take the stand cannot be used against him. The prosecutor shoulders the entire burden of proving the guilt of the accused. Given the number of innocent persons imprisoned in our country, including the many innocent persons sitting on death row, the defense lawyer failed to impress upon the jury that the accused enjoyed the presumption of innocence.
Q: How can defense attorneys help guilty persons evade justice?
A: They don’t.
If the jury returns with a not guilty verdict, either (1) the accused was innocent and never should have been prosecuted or (2) the prosecutor had inadequate evidence of the accused’s guilt and never should have pursued the charges or (3) the prosecutor had adequate evidence but failed to make a compelling case against the accused, for whatever reason. If the prosecutor has compelling evidence and has done his job, he should win every trial. If he is unable to convince a jury of the guilt of the accused, he shoulder’s all the blame. Prosecutors win the vast majority of trials. At first blush, a prosecutor’s evidence usually looks quite damning. A few really good criminal defense lawyers can, with exhaustive pre-trial preparation and skillful cross-examination, expose the very real weaknesses in a prosecutor’s case. Many charges can, in fact, be defended successfully.
Q: How much do lawyers charge?
A: Attorneys fees vary widely.
Lawyers charge by the hour or they may charge a flat fee for a particular type of case. Lawyers’ hourly rates vary between $125 per hour and $450 per hour. A lawyer charging between $125 and $175 per hour may not have much experience. As in any profession, the best can usually demand a higher fee for their work. Most of the top criminal defense lawyers charge at least $250 per hour. Most criminal defense lawyers charge a flat fee for defending a drunk driving charge. The flat fees for a drunk driving defense range between $1,250 and $20,000. The top criminal defense lawyers charge at least $5,000 to defend a motorist against a drunk driving charge.
Q: If I’m innocent but stand accused of a crime, do I really need a lawyer?
A: Yes, absolutely.
Innocence is no guarantee that the charges will be eventually dropped or that a jury will find you not guilty. The prisons are overflowing with innocent men and women. These unfortunates are the victims of dishonest police, corrupt crime laboratories, unethical prosecutors and inept criminal defense lawyers.
Q: Does the Criminal Justice System Work?
A: Rarely.
And certaintly not for the poor. As Clarence Darrow said in 1924, "Since the world began, a procession of the weak and the poor and the helpless has been going to our jails and our prisons and to their deaths." It is the poor who are most often accused of breaking the law, the least able to afford a decent attorney, and most often the victims of incompetent counsel, cowboy cops, unethical prosecutors, and meanspirited judges
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