Q & A Table of Contents
Legal FAQ Table of Contents
Police Questioning: When Miranda Warnings Are Required
What really happens if the police fail to read a suspect his rights.
Many people believe that if they are arrested and not "read their rights," they can escape punishment. Not true. But if the police fail to read a suspect his or her rights, the prosecutor can't use anything the suspect says as evidence against the suspect at trial.
Miranda Warnings
Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), a defendant's rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
When the Miranda Warning Is Required
It doesn't matter whether an interrogation occurs in a jail, at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect's answers as evidence at trial.
If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.
Pre-Arrest Questioning
People are often surprised to learn that if a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning.
Responding to Questions Before an Arrest
Does a person have to respond to police questions if he or she hasn't been arrested? Generally, no. A police officer generally cannot arrest a person simply for failure to respond to questions.
The Fifth Amendment to the U.S. Constitution guarantees the "right of silence." This means that unless a police officer has "probable cause" to make an arrest or a "reasonable suspicion" to conduct a "stop and frisk," a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.
However, there are several exceptions to this rule.
Loitering. The "right to silence" rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as "wandering about from place to place without apparent business, such that the person poses a threat to public safety." Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering.
Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification -- usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
Stop and Frisk Searches
A "stop and frisk" is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons (a "frisk").
A police officer may stop and frisk a person if the officer has a "reasonable suspicion" that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the "probable cause" that is required to make an arrest. In one recent U.S. Supreme Court case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant.
When frisking a person for weapons, police may feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. And, if a search produces an illegal substance, it may result in an arrest.
Post-Arrest Questioning
The almost-universal advice of defense attorneys is to keep the old mouth tightly shut when being questioned after an arrest, at least until after consulting an attorney. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt.
Consequences of Failure to Provide Miranda Warning
Without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.
For example, if a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence -- unless the police can prove that they would have found the weapon without the suspect's statements.
When Police Come Down Too Hard
Information that is voluntarily disclosed to a police officer (after the person has been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get a suspect to talk to them. In addition, any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
To learn more about Miranda, and to get answers to your questions about every part of a criminal case, read The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
Bail: Getting Out of Jail After an Arrest
Everything you need to know about bail: what it is, how it's set, and how to pay it.
A person's first thought upon landing in jail is often how to get out -- and fast. The usual way to do this is to "post bail".
Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.
How Bail Is Set
Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to five days to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.
The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over.
So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).
If a defendant can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the defendant appears in court for the first time (usually called the arraignment).
Paying Bail
Bail can take any of the following forms:
- cash or check for the full amount of the bail
- property worth the full amount of the bail
- a bond (that is, a guaranteed payment of the full bail amount), or
- a waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").
A bail bond is like a check held in reserve: It represents the arrested person's promise that he or she will appear in court when required. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond).
A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral". This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.
Getting Out of Jail Free
Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail.
A defendant commonly requests release on his or her own recognizance at the first court appearance. If the judge denies the request, the defendant then asks for low bail.
In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:
- The defendant has family members (most likely parents, a spouse, or children) living in the community.
- The defendant has resided in the community for many years.
- The defendant has a job.
- The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
- The defendant has been charged with previous crimes and has always appeared as required.
For more information on bail, and everything else you need to know about criminal law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo).
Accomplices, Accessories, Aiders, and Abettors
Anyone who intentionally participates in a crime or helps a criminal before or after a crime may be held responsible for the crime under accomplice liability.
People can participate in crimes in different ways and to different degrees. For instance, in a bank robbery, one person may enter the bank and conduct the holdup, while another person is waiting in the getaway car and a third person is positioned at a different location as a spotter.
Principals and Accomplices
As a general rule, the law refers to the main actor in a crime as the principal and to assisting persons as accomplices. Technically, an accomplice is one who intentionally helps another to commit a crime.
Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice's pre-crime assistance makes him or her just as guilty as the person who does the deed itself. For example, assume that Lars Senny breaks into a warehouse and steals property belonging to the warehouse owner. Hal Perr would be Lars's accomplice and just as guilty as Lars if Hal takes any of the following steps to assist Lars to commit the theft:
- Hal works in the warehouse and drugs the warehouse nightwatchman before leaving work on the day of the theft.
- Hal cuts the wires to the burglar alarm (or cuts a hole in the fence) so that Lars can enter the warehouse without being detected.
- Hal is a designer of warehouses and meets with Lars a week before the theft to review warehouse layouts and exit routes.
- Hal rents a U-Haul and parks it outside the warehouse on the night of the robbery.
- Knowing what Lars has in mind, Hal agrees to babysit for Lars's infant child while Lars goes to the warehouse.
To prove that a defendant is an accomplice, the government must prove that he or she intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to help the crime succeed.
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Accessory After the Fact
An accessory after the fact is someone who, knowing that a felon has finished committing a crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states, accessories after the fact face far less punishment than accomplices or principals.
Conspirators
Conspirators are two or more people who agree to commit a crime. (The distinction between accomplices and conspirators is that the former are "helpers," while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them commits an "overt act." An "overt act" is an activity that in some way moves a conspiracy into motion.
Criminal Trial Procedures: An Overview
Most criminal trials follow a uniform set of procedures. Here's a step by step guide to the criminal trial process.
The many rituals associated with modern trials have developed over centuries. America's common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. Assuming that the trial is carried out to completion, those procedures are as follows:
Decision by Judge or Jury. The defense generally decides whether a case will be tried to a judge or a jury, but in some jurisdictions both the prosecution and the defense have the right to demand a jury trial.
Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called "voir dire." In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own.
Evidence issues. The defense and prosecution request the court, in advance of trial, to admit or exclude certain evidence. These requests are called motions "in limine."
Opening statements. The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. Because neither side wants to look foolish to the jury, the attorneys are careful to promise only what they think they can deliver. In some cases, the defense attorney reserves opening argument until the beginning of the defense case.
Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor.
Cross-examination. The defense may cross-examine the prosecution witnesses.
Redirect. The prosecution may re-examine its witnesses.
Prosecution rests. The prosecution finishes presenting its case.
Motion to dismiss (optional). The defense may move to dismiss the charges if it thinks that the prosecution has failed to produce enough evidence -- even if the jury believes it -- to support a guilty verdict.
Denial of motion to dismiss. Almost always, the judge denies the defense motion to dismiss.
Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses.
Cross-examination. The prosecutor cross-examines the defense witnesses.
Redirect. The defense re-examines the defense witnesses.
Defense rests. The defense finishes presenting its case.
Prosecution rebuttal. The prosecutor offers evidence to refute the defense case.
Settling on jury instructions. The prosecution and defense get together with the judge and craft a final set of instructions that the judge will give the jury.
Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it and explaining why the jury should render a guilty verdict.
Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it and explaining why the jury should render a not guilty verdict -- or at least a guilty verdict on a lesser charge.
Prosecution rebuttal. The prosecution has the last word, if it chooses to do so, and again argues that the jury has credible evidence that supports a finding of guilty.
Jury instructions. The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges "preinstruct" juries, reciting instructions before closing argument or even at the outset of trial.)
Jury deliberations. The jury deliberates and tries to reach a verdict. Most states require unanimous agreement, but Oregon and Louisiana allow convictions with only 10 of 12 votes.
Post-trial motions. If the jury produces a guilty verdict, the defense often makes post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.
Denial of post-trial motions. Almost always, the judge denies the defense post-trial motions.
Sentencing. Assuming a conviction (a verdict of "guilty"), the judge either sentences the defendant on the spot or sets sentencing for another day.
Can I refuse to let a police officer search my car during a traffic stop?
QUESTION:
A cop pulled me over for running a red light, and then he searched me and my car. He didn't find anything, but I felt humiliated and violated by the whole thing. Was he allowed to do this? Could I have said no?
ANSWER:
A traffic stop is normally just that. If the officer issues you a citation and has no basis to suspect that you are armed and dangerous or involved in criminal activity, the officer cannot search you or your car. Of course, if the officer does see something suspicious, then the law allows the officer to do a "pat-down" search of you and of the passenger compartment of your car. The police officer can also "frisk" (feel the outside of) any purses, bags, or other things in the car that could hold a weapon. But, if you allow the officer to search you or your car, then the search will normally be considered valid -- even if there were no solid reasons behind the officer's request. Many people don't realize that they can refuse a search. But, as you no doubt know, it's not easy to say "no" to someone who is wearing a gun and scary reflective glasses.
Be aware, however, that laws in many states authorize police officers to arrest drivers for minor traffic offenses, such as speeding or failure to wear a seat belt. If a police officer does choose to arrest a driver, then the officer can conduct a search.
What rights does a juvenile or minor have when arrested?
QUESTION:
My daughter was arrested for underage drinking and a curfew violation, but her rights were never read to her. She was handcuffed, fingerprinted and given a breath test, which she failed. Does she have any legal rights as a juvenile when she faces the judge?
ANSWER:
In most states, underage drinking and curfew violations are classified as status offenses. That means that if an adult committed these acts they would not be considered illegal, but they are problematic for juveniles. Sounds like your daughter committed a status offense. In the eyes of the law, juveniles who are accused of status offenses are entitled to some, but not all, of the protections given to adult criminal defendants.
The police are generally allowed to take a juvenile into custody if they have reasonable cause to believe the juvenile needs supervision, has violated a court order, or is in public and appears to need medical attention. It's a permissible formality to fingerprint a juvenile who has been taken in this way.
But the fact that your daughter's rights -- commonly referred to as Miranda Warnings -- were never read to her may be a problem for the prosecution. In some states, status offenders may not be forced to incriminate themselves and must have the Miranda warnings read to them before the police can question them. But this is often true only if the juvenile faces the possibility of detention. You'll have to check your own state law using Nolo's online legal Statutes and Cases.
If your state law protects status offenders in this way, then any damaging statements your daughter gave to the police -- and any evidence the police uncovered as a result of those statements -- may not be considered by the juvenile court judge who decides her case.
Can a 'no contest' plea bite you later in life?
QUESTION:
I shoplifted some DVDs, and got caught and charged with a misdemeanor. If I plead "no contest" to a misdemeanor, will it go on my record -- and can I be charged in civil court for the same crime?
ANSWER:
A no contest plea -- known often by its Latin name "nolo contendere" -- means that you agree to accept the punishment without formally acknowledging that you are guilty. It does go on the record, in the sense that the court record for the case will indicate a no contest plea. A credit or background reporting agency and anyone who looks at the public court record will see and can report the plea.
As for your question about civil court, keep in mind that you can't be charged with a crime there. In civil cases, individuals sue each other, usually over money -- in this case, the store would be the one suing you over the loss of the DVDs.
If you are sued in a civil case over the same incident that also involved a criminal charge, a guilty plea from the criminal case could be introduced against you in the civil case as proof that you did the deed. But if you've entered a no contest plea, that can't be used as evidence of guilt at a civil trial. In fact, that's the main reason people enter a no contest plea.
The plaintiff in the civil case will have to produce independent proof that you are responsible for the event -- and will have an easier time of it than the prosecutor in the criminal case, since the standard of proof will be simply a preponderance of the evidence and not beyond a reasonable doubt.
Arrests and Interrogations FAQ
Learn about several constitutional protections that you can invoke during police interrogations.
What's Below:
When do the police need a warrant to make an arrest?
If I'm arrested, do the police have to "read me my rights"?
Will a judge dismiss my case if I was questioned without a Miranda warning?
What's the best way to assert my right to remain silent if I am being questioned by the police?
How heavy-handed can the police get when asking questions?
Can a person who is charged with a crime be forced to give bodily samples?
When do the police need a warrant to make an arrest?
As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense -- such as a simple assault -- and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.
If I'm arrested, do the police have to "read me my rights"?
No. However, if they start questioning you but haven't read you your rights, they can't use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.
Will a judge dismiss my case if I was questioned without a Miranda warning?
No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you.
In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.
What's the best way to assert my right to remain silent if I am being questioned by the police?
If you're taken into custody by the police, you don't have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
- I want to talk to an attorney.
- I won't say anything until I talk to an attorney.
- I don't have anything to say.
- I don't want to talk to you anymore.
- I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point -- and any evidence gleaned from that conversation -- will not be admissible at your trial.
How heavy-handed can the police get when asking questions?
Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights, and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
Defendants often claim that police officers coerced them into talking. And it's just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.
Can a person who is charged with a crime be forced to give bodily samples?
Yes. You might think that being forced to give bodily samples -- such as blood, hair, or fingernail clippings -- is a violation of the U.S. Constitution's protection against self-incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the protection against self-incrimination.
I was pulled over at a roadblock and asked to wait and answer a police officer's questions. Is this legal?
Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and minimize any inconvenience to you and the other drivers. The police can't single out your car at a roadblock unless they have good reason to believe that you've broken the law.