Criminal Defense – “If you don’t tell me, then you are going to jail” really means its too late. Don’t help your own prosecution.

By Patrick Sullivan

I have defended more Virginians than I can count, for everything from traffic infractions to the most serious charges of rape and murder.  I have had trials all over Virginia, from Virginia Beach to Charlottesville. And no matter what the charge, or where the case is, there is something that I urge each citizen to remember when dealing with law enforcement.

I cannot tell you how many clients tell me the same story.  They refused to answer a question or were evasive in their answer (naturally, most people are unaccustomed to dealing with the police and it makes them very nervous) and the law enforcement representative will then say, “If you don’t tell me, then you are going to jail.”  Guess what? You are more than likely going to jail anyway at that point, regardless of your answers. All you are doing is providing the opposing party with more information. 

I mention this topic, not to in any way discourage the public from working with the law enforcement community, but to remind citizens of their rights when faced with these tense situations.

The Supreme Court of the United States of America has a great deal of history and precedent in addressing the rights of citizens in police interactions, that in your leisure you can read up on.  Additionally, each state court has even more specific rulings on state statutes and local ordinances. Allow me to recommend to you a must shorter list to remember:

  1. Properly identify yourself when asked by law enforcement – Yes, there is a sliding scale of escalation with every police interaction, and entire books are written on this very subject. Yes, sometimes you do not have to identify yourself in some VERY fact-specific situations.  However; in most situations, even if it is eventually determined by the officer that no actual crime has been committed, you can still be summonsed/arrested for refusing to identify yourself (either under state or local codes), specifically if you refuse to ID yourself while operating a motor vehicle (required by Va Code §46.2-104).
  1. Invoke your rights to refuse to answer any questions and your right to counsel as soon as possible – The 5th and 6th Amendments to the United States Constitution, in addition to other rights, gives you the right to refuse to answer questions where the answers may tend to incriminate yourself.  You do not have to be a witness against yourself! They also give you the protection of stopping all questioning by law enforcement once you orally invoke the right to counsel. Staying silent is NOT and invocation of this right. I recommend you politely state, “That I refuse to answer any questions outside the presence of my legal counsel, and I am requesting that counsel immediately.”  

That’s it!  You have notified law enforcement that you do not wish to answer any of their questions outside the presence of your lawyer and that you are requesting your lawyer as soon as possible.  This should stop any further questions regarding the incident then and there…

I say should, as you can always waive the very rights you have invoked! Specifically, if YOU start asking questions of the officers.  Or YOU chat with the officer in the back of the police car on the way to the jail or police station. Or YOU start, on your own, making statements to the police.  If YOU reengage officers after the invocation, YOU are seen as starting the process all over again and the officers may, of course, restart their questions. So, in short, if and when you are being questioned by law enforcement, keep it extremely short and polite.  If they have probable cause to arrest you from other information and evidence, they will. Please do not help them make your prosecution any easier.

I would also take this opportunity to remind citizens that all phone calls and mail coming in to, or out of, the jail is either recorded or screened.  Anything said during the phone conversation or in the mail, can and will be used against you. Only communications with your counsel are protected.   

If you have been charged with a crime, please contact counsel as soon as possible.  I give free consultations and will be happy to help you during this stressful and procedurally confusing time.