The Weekly Sedition

Monday, 18 August 2008

Know Your Rights as the Accused

Filed under: Uncategorized — Tags: , , , — weeklysedition @ 6:25 PM

Every week on TV, Bill Koehler and I provide information to audience about their rights when the cops suspect them of a crime, their rights as the accused, and as a juror.

Before I begin, a DISCLAIMER —

  • NOTHING that you read here should be construed as legal advice.
  • Your reading of this page does NOT constitute any sort of attorney-client relationship between yourself and Bill Koehler or myself.
  • Consult an attorney before making any sort of statement to, or filing any sort of paperwork with, the cops, the prosecutor, or the judge.

First, when the officer stops you on the street, they have to have what’s called “reasonable suspicion” to stop and hold you, i.e. that you “has been, is, or is about to be engaged in criminal activity based on specific and articulable facts and inferences.” At this point, the officer is allowed to conduct what’s called a Terry frisk, where they search you for weapons. The idea here is that the officer is conducting the search to ensure his/her personal safety, and the safety of bystanders and other officers.

A note about the Terry stop — if the officer finds other contraband items, — drugs, for example — they are NOT admissable as evidence against you unless it’s clear to the officer that the item(s) indeed are contraband.

Next, if they want to search your person, your vehicle, your possessions, or your home, or arrest you, they have to have what’s called “probable cause” — again, a reasonable suspicion that you’ve done something wrong. Bill and I recommend that you ask the officer these three questions — 1. Am I free to go? 2. Am I under arrest? 3. What am I being charged with?

Ask them this over and over again. YES, they will get annoyed, but that’s their problem. If they don’t want to deal with you asking those questions repeatedly, they can always release you. [2]

When they want to search you, your vehicle, your possessions, or your home, insist on a warrant. And even if they do get that warrant, still refuse consent for them to search. If they get what’s called a “telephonic warrant,” tell them they can conduct a telephonic search — they can call you on the phone, tell you what they’re looking for, and you can tell them if you have the item(s) in question.

Should the officer(s) decide to arrest you, they are required to read to you what’s called the Miranda warning. At the end of the warning, some officers will ask you these two questions —

          Do you understand the rights I have just read to you?
          With these rights in mind, do you wish to speak to me?

Answering “No” to first question will merely get the warning re-read to you. If you have plenty of time to kill, you could ask the officer to explain your rights under the law, but I suspect that in most cases, the best bet is to get clear of the situation as soon as possible.

Answering “No” to the second question is the cutoff — after hearing that, the officer(s) are NOT permitted to question you until you agree to waive those rights. At the same time, you have to remember the Golden Rule — “Silence is golden.” KEEP YOUR MOUTH SHUT!

While browsing the web, I found this comment from Tom Knapp on criminal prosecutions [1] —

          98% of criminal prosecutions in the US result in “convictions,” 92% through plea bargains reached
         between a powerless defendant and a nearly all-powerful prosecutor, the other 6% through jury trials.

That’s a big part of why Bill and I recommend that people accused of crimes by the state —

  1. Plead “not guilty,” and refuse to plea bargain with the prosecutor.
  2. Insist on a jury trial within six months of charges being filed against you. Refuse to accept any delays from the prosecuting entity — either the case goes to trial within six months, or they drop the charges.
  3. In New Mexico (we don’t know about other states), there’s a procedural rule that the prosecuting entity must provide the defense with copies of all evidence against the accused within thirty (30) days of charges being filed. If the prosecution fails to provide that evidence within 30 days, the charges must be dropped.

Considering Tom’s comment above, if people charged with crimes started insisting on that jury trial within six months of charges being filed, and refusing to plea bargain, then the cops and prosecutors would have to be a lot more selective in the cases that they choose to pursue. And who knows — they just might ask the legislatures to start repealing the non-sensical laws such as Drug Prohibition, “gun control,” zoning, taxes, censorship codes,and the like.


[1] Faux libertarians throw rocks at Gravel
[2] You & The Police!, by “Boston T. Party
[3] Fully Informed Jury Association [FIJA]