Police questioning suspectThis is the next post in my series explaining how search and seizure issues impact criminal cases in Phoenix, Arizona. My last post discussed the issue of whether or not one’s rights were violated when they spoke with the police. Whether or not a defendant is required to speak with law enforcement can be one of the most confusing issues in criminal law. In this article I will discuss the ramifications of speaking to law enforcement without having an attorney present. At the outset, I feel compelled to say that rarely, if ever, does it benefit a defendant to speak with law enforcement. The biggest hurdle I face in helping clients is dealing with statements they made to the police. Often I am asked what to do when stopped by the police, and my answer is always the same. Say nothing except for your full legal name. Refuse to answer any other questions.

Defendants may have waived their right to have counsel present when speaking to Arizona law enforcement

As I discussed in my last article, defendants are entitled to have counsel present during what is known as a “custodial interrogation.” It is important to understand, however, that this right can be waived. In other words, if one freely chooses to speak with the police after having been informed of their rights then any statements made will be admissible in Court. Such a waiver must have been made knowingly and voluntarily by the defendant. Determining whether the waiver was knowingly made and whether it was voluntary are two separate issues.

A waiver will be considered to have been knowingly made if it can be shown that the defendant had a basic understanding of their rights. In making this determination the Court will look at the particular defendant. This means, for example, that a child speaking with the police will not be held to the same standard as an adult. Likewise, a defendant who has a developmental disability will likely not be held to the same standard as many other people. If the defendant did not have a basic understanding of their rights then the waiver is invalid; one cannot “voluntarily” give up a right which they are unaware that they have. Over the years the Courts have made it very hard to prove that a defendant did not knowingly waive their rights, which is why not talking at all is best.

A waiver will be considered to have been voluntary if it did not involve coercion from law enforcement, under the U.S. Supreme Court decision in Colorado v. Connelley. Prior to the Connelley decision it was not required that a defendant show police coercion to invalidate a waiver. The law changed with the decision and, as a result, invalidating a waiver is now more difficult, again making it all the more essential to not speak in the first place.

Finally, a waiver must be clear and unequivocal in order to be effective. In plain English, this means that it must be clear and unambiguous that the defendant wished to waive their rights. For example, an officer asks if the defendant wishes to talk. The defendant then responds by saying “yeah, I guess.” Courts have held that “I guess” is not clear and unequivocal. Therefore the officer can start asking questions. The best bet for a defendant is to always state clearly that they do not wish to speak to law enforcement and will not speak to law enforcement under any circumstances. If arrested, stating with clarity that “I will not speak until I am provided an attorney” is the best way to stop all questioning.

It is crucial that defendants understand whether their Fifth Amendment rights were violated before entering into any type of plea agreement or otherwise proceeding in their case.

Phoenix residents should contact an attorney to determine if they waived their rights to remain silent

Unfortunately, many defendants make the mistake of assuming that they have waived their rights because they spoke with the police. As explained above, speaking the police does not mean that the statements will be introduced in Court. It may be possible to establish that the waiver of one’s Fifth Amendment rights was invalid. If you have questions as to whether your rights were violated then contact my office today. In addition to Phoenix I also service other Maricopa County cities such as Mesa, Glendale, Scottsdale, Chandler, and Gilbert and I assist Pima County residents in Tucson.

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