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Frequently Asked Questions
How can you find out about your rights if you are being investigated or charged with a crime?
An Internet resource can not substitute for the advice of an attorney. If you have been arrested or are in custody, then you have the right to remain silent and to representation of an attorney. If you have any suspicion that you may be accused of a crime (and you should be suspicious if you are questioned by a police officer), then you should immediately retain an attorney. You should speak only to your attorney, and to no one else, about criminal investigations and charges. The answers provided on this FAQ page are intended only to provide some general background information, and are not legal advice or authority, and do not creat an attorney-client relationship. If you are being investigated or charged with a crime, then you should immediately retain an attorney to advise you regarding your rights. There is no substitute for a criminal defense attorney.
Should you just plead guilty to a crime because a police officer or prosecutor tells you that it is not a serious crime or that the charges are no more serious than a traffic ticket?
No. Police officers and prosecutors have a personal interest in seeing that citations lead to convictions. Some police officers "apologize" to you for writing citations charging a misdemeanor, and tell you that the citation is no more serious than a traffic ticket. These police officers tell citizens that the prosecutor and judge are usually reasonable if you just go to court and plead guilty. Not true. Conviction of any crime can have serious consequences, affecting your life in ways you never anticipated. Conviction of some misdemeanors can prohibit you from possessing a firearm or ammunition. Your driver license may be suspended. You may also be deprived of a professional license, job, or rental housing. Conviction of a misdemeanor crime can prevent you from traveling to another country. In addition, some misdemeanors carry enhanced penalties. You should ignore the legal advice of police officers and prosecutors and retain a criminal defense attorney if you are given a citation charging a violation of the law.
What does it mean when a crime carries enhanced penalties?
Some states have crimes that carry enhanced penalties, which means that your conviction leads to greater penalties now, or to more serious charges and penalties in future charges. For example, in some states a first DUI conviction is a Class B misdemeanor, but a second DUI will be charged as a Class A misdemeanor, and a third DUI will be charged as a Third Degree Felony. Or a crime may carry enhanced penalties because of circumstances surrounding the crime. For example, in some states possession of a small amount of marijuana may be a Class B Misdemeanor, but the crime is enhanced to a Class A Misdemeanor or Third Degree Felony if it is committed within a certain distance of a school, park, or church. Examples of enhanced crimes include domestic violence assault, violations of a cohabitant abuse protective order, unlawful possession of a controlled substance, driving while intoxicated, driving while impaired by controlled substances, and sex crimes. The number of enhanced crimes is growing rapidly, and a comprehensive list of enhanced crimes is beyond the scope of this page. You should retain an experienced criminal defense attorney to advise you as to whether a crime carries enhanced penalties, and what those enhancements are.
Can a police officer stop you if you are in a public place and ask you questions even if you haven’t committed a crime?
In many states, a police officer can stop you even when you haven’t done anything wrong. So long as the police officer doesn’t suggest that the law requires you to talk or agree to a search, the United States Supreme Court has held that law enforcement can stop you, ask you questions, and ask to search you and your purse, brief case, backpack, or other similar possessions, even if the police don’t have any reason to suspect that you have done anything wrong. U.S. v. Drayton (U.S. 2002). Some states have statutes and case law that allow a police officer to stop you if the police officer has a "reasonable suspicion" that you have committed or are committing a crime, and to "demand" your name, address, and an explanation of your actions. Failure to provide the requested identification can be a crime under certain circumstances. When in doubt, ask if you are in custody or if you are free to go. If you are not free to go, then you are in police custody and you can say you want to retain an attorney to advise you before you say anything further. If you are free to go, you can say that you are not refusing to answer questions and that you are not refusing to cooperate, but that you want an attorney to represent you before you speak.
Can a police officer record you without your knowledge and consent?
Digital audio and video technology has made it possible to record you at any time, and recording is ubiquitous. It is safe to assume that all police officers record you at all times. Even if the police officer tells you that you are not being recorded or are not being investigated, the police officer is probably recording you. Whether you are approached in a public place, in a vehicle, on private property, at school, or at home, it is safe to assume that you are being recorded from the moment you start speaking to a police officer (whether in person or over the telephone). Police patrol cars have audio recording so that if you are placed in a patrol car, what you say can be recorded. In addition, telephone and personal conversations are recorded in jail, juvenile detention facilities, and in prison. When calling to and from a juvenile detention facility, jail, or prison, assume that you are being recorded.
If the police can stop me, question me, and record me, how do I respond to a police officer?
In general, after you provide requested identification, you can ask the police officer if you are in custody or if you are free to go. If you are free to go, in most cases, you can leave without answering any more questions. If you are not free to go, then you are in custody, and you can ask to have an attorney represent you before you say anything more. The police officer can still interrogate you if you are in custody, but the officer is required to give you a "Miranda warning," advising you that you have the right to remain silent and that you have the right to an attorney during questioning. At that point, your answer is simple: "I’m not saying anything until I have an attorney." Then remain silent.
What if the police officer tells me he will arrest me and take me to jail if I don’t talk to him?
Some police officers rely on intimidation to get you to answer questions. Police officers are known to threaten to charge you with "obstruction of justice" or "harboring a fugitive" if you refuse to answer questions or insist that police obtain a search warrant if they want to search your home or vehicle. Under certain circumstances, in some states you can be charged with crimes if you do not answer a police officer’s questions. A Utah judge, for example, has been charged with obstruction of justice for insisting that police obtain a search warrant if they wanted to search her home. The case against the Utah judge is being watched closely, and could have substantial impact on how people in Utah interact with the police. Generally, however, in response to a police officer’s question, you can ask if you are free to go. If the officer tells you that you are not free to go, then you are in custody, and you have the right to remain silent and to representation of an attorney. You can respond that you are not refusing to answer and that you are not refusing to cooperate, but that you want the advice of an attorney before you say anything more. If you decide to answer a police officer’s questions without the advice of an attorney, you are in danger of being charged with serious crimes that you did not commit.
If I know I am innocent, and have nothing to hide, why shouldn’t I just answer the police officer’s questions?
Many innocent people have been convicted of crimes that they did not commit. The Innocence Project has freed thousands of innocent people who were mistakenly convicted of the most serious crimes like rape and capital homicide. Based on the efforts of the Innocence Project alone, it is safe to assume that tens of thousands (if not hundreds of thousands) of Americans have been convicted of crimes that they did not commit. Every American should be required to read John Grisham’s non-fiction book, The Innocent Man, which chronicles the horrors of an innocent man wrongly convicted and sentenced to death for the brutal rape and murder of a young woman.
Can I be charged with a crime because I answer a police officer’s questions?
Yes. Innocent people can end up contradicting themselves, or making inconsistent statements over time, resulting in charges such as giving false information to a police officer or obstruction of justice. For example, celebrity Martha Stewart gave statements to law enforcement while she was being investigated for a crime that she did not commit. Based on her own voluntary statements, Stewart was charged and convicted of obstruction of justice, and served several months in prison. It is a mistake to assume that all you have to do is "tell the truth" and everyone will see that you are innocent.
What if a police officer asks me to take a "voice stress analysis" test?
A "voice stress analysis" test is a polygraph, or lie detector, test. In general, you should refuse to take the test, which is inaccurate. Lie detector tests often indicate that an innocent person is lying. Even if a lie detector test is not be admissible as evidence at trial, police may arrest a suspect because they believe that test results show that a person is guilty. More sinister, police officers may try to use the test to obtain a confession by lying to suspects and telling suspects that they are failing the test, so that they might as well go ahead and confess. Whether the test is called a "voice stress analysis test," "polygraph test," or "lie detector test," in general, you should refuse to take the test, and retain an attorney.
It seems like once a police officer starts questioning me, I’m damned if I answer and I’m damned if I remain silent, so what should I do?
If you have any suspicion that you may be accused of a crime (and you should be suspicious if you are questioned in person or over the telephone by a police officer, detective, agent, or other law enforcement officer), then you should immediately retain an attorney before talking to anyone. Prosecutors will use your own words against you. Your statements can prejudice you throughout the entire judicial process, affecting the whether charges are filed against you, what those charges are, the amount of bail, rulings at pretrial hearings, and the results at trial.
Can a police officer question my child without my permission?
In Utah, schools have become branch offices of police stations. It is common practice for Utah police officers to pull children from their classrooms and to interrogate children, on school premises, about their alleged crimes, and the alleged crimes of parents, adults, and friends. The interrogating police officers secretly record the interrogation. Absurdly, Utah law enforcement has taken the position that any child at least 14 years old is competent to waive the child’s First Amendment right to remain silent, and to waive the child’s right to a “Miranda warning.” Although Utah police officers often tell the child that the child can have parents or a counselor present during the questioning, children often "waive" this offer because they think they are old enough to handle the interrogation on their own. The results are often disastrous for the child and the child’s family. The only safe way to address the situation is to train your child to refuse to answer questions of a police officer at school until parents are present. If your child is charged in Juvenile Court, or as an adult (serious youth offender), you should retain an experienced criminal defense attorney to aggressively challenge the interrogation of your child.
Do the same rules apply about answering a police officer’s questions when I’m stopped while driving a vehicle?
If you are stopped while driving a vehicle, your privilege of having a driver license opens up an entire body of criminal law. When a police officer stops your vehicle, you may have the constitutional right to remain silent. However, in some states, by obtaining a driver license you consent that when a police officer has lawfully stopped your vehicle, the officer may be able to give you a field sobriety test, a breath test, and take a blood test. Refusal to cooperate with the police officer can result in the suspension of your driver license and, in some states, filing of criminal charges. The law governing DUI, or drunk driving, is complex, and is beyond the scope of this page.