I wasn’t read my rights: How they can use what you said against you

The cop seemed nice enough. He just wanted to hear your side of the story. And you didn’t have anything to hide–after all, the guy hit you first; you were just returning the punch. Besides the guy walked away, he went home and so did you. It was days later when the cop called, you figured he was just following up. It never occurred to you to wonder why.

What you didn’t know was that the other guy had called the cops later that night. He reported that he was assaulted and the cop was investigating. Doesn’t the officer have to tell you that? Didn’t he have to read you your rights?

What happened to the Fifth Amendment?

You’ve heard it more times that you can count: You have the right to remain silent, anything you say can and will be used against you. 50 years ago, in the case Miranda vs. Arizona, the Supreme Court ruled that you must be informed of your constitutional right not to incriminate yourself. So, what gives?

You’re right if you think that once you are arrested, you must be read your rights; but during an investigation an officer can question you whenever he wants, as long as he wants, anywhere he wants–as long as you agree. And the location doesn’t matter. Did the cop ask you to come down to the precinct? Since you were not informed that you were under arrest, you might believe you have nothing to fear. You were wrong.

Custodial vs. non-custodial interviews

Custodial vs. non-custodial interviews–that is the issue here. As long as you are free to end the conversation with a police officer, you’re interview is considered “non-custodial.” What does that mean in laymen’s terms? It means that if a cop calls you on the phone, he doesn’t have to read you your rights. It means that if he stops by your house, he doesn’t have to read you your rights. It even means that if he asks you to come to the precinct and you voluntarily go, he does not have to read you your rights.

How can that be? The courts hold that in all these circumstances you could end the conversation: hang up the phone, close the door, get up and leave. Even from the precinct? Yes, even from the precinct. You might argue that being in a police station doesn’t exactly give you the right to leave–you’ve been asked to come down and unless they tell you that you can go, you assume that you cannot.

Ignorance of the law is no excuse.

You may have heard the saying: Ignorance of the law is no excuse. It means, in essence, that just because you did not know that a law existed, does not preclude you from being charged if you break it. The same holds true of your rights. The fact that you are unaware that you can get up and leave does not mean that you cannot. It’s not the cop’s job to tell you. And rest assured, he won’t.

That conversation with the cop you just had is very likely going to get you charged. And don’t assume the other guy is going to be charged as well. He called first, he reported a crime. You have just corroborated it, and in all likelihood he will walk. You on the other hand, have just bought yourself an arrest record, and more than likely a conviction. Exercise your rights: Don’t talk to a cop.

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