Remaining Silent: Always in Best Interest

Those who are arrested for criminal offenses in New York will undoubtedly have plenty of questions about the process and the consequences that being found guilty of the offense may bring. However, these questions should only be asked to and explained by competent criminal defense attorneys, never police officers or criminal investigators.

When Accusations are Made

As soon as accusations of criminal conduct are made against a person, that person should immediately refrain from making any further comments or answering any questions regarding the allegations and should instead elect to remain silent.

Despite how they think that remaining silent will make them look, remaining silent is always in the best interest of a New York criminal suspect. When a person remains silent, then the person’s own statements or comments can’t be used against the person in trial. Considering the fact that police officers and investigators are human and prone to misunderstandings, having a statement or comment misunderstood, misinterpreted, or misreported can be much more damaging to a person’s defense than simply waiting for an attorney to provide counsel and to handle questions on the suspect’s behalf.

What is the 5th Amendment?

Most people know the 1st amendment, which guarantees the right to free speech, freedom of the press, freedom of religion, etc – and many people know the second amendment, which grants the right to bear arms, but many are unaware of the 5th amendment and the protections that it grants.

Under the U.S. Constitution, the 5th amendment provides that individuals shall have the right not to have their life, liberty, or property seized without due process of law, and the right not to bear witness against oneself – another way of saying the right not to self incriminate.

When a police officer informs a criminal suspect of his or her right to remain silent, that right can remain in force and exercised for the rest of criminal proceedings. Following an arrest and the advisement of rights, a person need not say a single word and can still defeat charges. Remember O.J. Simpson? He didn’t utter a single word on the record at his criminal murder trial in the 1990s. This wasn’t some clever ploy used by Johnnie Cochran to win the case, it was the exercising of a right which he, as the criminal defendant, was given.

The reason the right exists and why it was included in our Constitution is because our founding fathers were tired of living under a government that could sling wild accusations about members of the public and then force the accused individuals to disprove the charges. As one might imagine, this led to terrible abuses of justice, and the founding fathers wanted to ensure that no matter how heinous the charges, it would be the job of the state to show that they are true, never the job of the accused to show that they are false. Only in very rare cases will any burden shift to a criminal defendant at trial. If a government attorney cannot prove the charges against a suspect beyond a reasonable doubt, then the suspect must be set free.

How to Invoke 5th Amendment Protections

Some of the most damning evidence that is gathered against a person suspected of a crime is gathered before an arrest is made, and sometimes it is evidence in the form of testimony that is offered by the very suspect of the crime. Since police don’t usually divulge all the details of their investigations to everyone they speak to, knowing exactly why a police officer or investigator is asking certain questions is next to impossible. If no arrest is made, the police have no duty to inform anyone they suspect of an offense that the questions they are answering may be used against them.

Therefore, it is best to invoke the right to remain silent as soon as contact with police starts. This now has to be done by saying something like “I invoke / exercise my right to remain silent.”  It may seem trivial, but saying this little statement to a police officer or investigator as soon as possible can mean the difference between Constitutional protections and incriminating oneself by remaining mute.

If Possible, Avoid Public Defenders

Public defenders are attorneys appointed by the court to suspects who otherwise would not be able to afford legal counsel. While the intent behind public defenders is noble, many in jurisdictions with crowded courts are often reduced to nothing more than makers of plea bargains. A plea bargain is a deal made between a prosecutor and criminal suspect in which the prosecutor agrees to drop more serious charges in exchange for a confession to less serious charges. Unfortunately, public defenders advise their clients to take these deals even when those clients have a solid chance at a real defense – usually in order to help the court clear up its backlog of cases.

If they are advised by a public defender to take a plea deal, suspects should always get a second opinion. In fact, it would be best if those suspects could avoid being assigned a public defender altogether and instead work with independent legal counsel as soon in the process as possible.

Above All, Stay Silent

No matter what a person is accused of, by whom the person is accused, and no matter the person’s prior offenses or convictions, it is always in a suspect’s best interest to refrain from answering any questions and to refer all questions to legal counsel.

Contrary to popular belief, police and criminal investigators don’t need the statements or comments of criminal suspects in order to justify an arrest or move forward with a prosecution. If evidence of a crime exists, then an arrest and prosecution can be made with no help, no answers, and no comments from the suspect. Often times, however, there is not enough evidence of an offense to justify an arrest or prosecution, and questions made by police and investigators are little more than fishing expeditions to get the suspect to incriminate him or herself – which all suspects have the right not to do.

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Posting Bail or Bond

When a police officer discovers you breaking the law, you could be arrested, given bail, sent to jail or given a desk appearance ticket. 

Desk Appearance Ticket

Often in New York City, the police will issue a Desk Appearance Ticket (DAT) rather than put a suspect through the entire arrest procedure. For example, if you have valid identification, the charge does not involve violence or domestic violence, and you do not have a criminal record, a DAT will usually be issued. It’s a ticket that requires you to appear on a future date in criminal court. If you are given a DAT, you will return on the specified date to see the judge for arraignment. A DAT is rarely issued for a felony. If you’re arrested and receive a DAT, get some legal help right away and call an experienced Long Island criminal defense attorney promptly.

When you receive a DAT, the police have created a record that can potentially impact you for years to come. Even on a minor charge, a criminal conviction can keep teachers from teaching, lawyers from practicing, and physicians from healing; it can sometimes impact your driving privilege and your ability to own a firearm. You’ll want to retain a skilled and experienced criminal defense attorney to fight for justice on your behalf. If you do not appear in court on the required date, a bench warrant will probably be issued for your immediate arrest. A DAT is the legal equivalent of a formal arrest, and it’s just as serious.

Frankly, the criminal justice system makes it virtually impossible to represent yourself competently. Each criminal case is unique, and only an experienced, knowledgeable criminal defense attorney can provide the effective defense that every defendant needs. If you face a criminal charge anywhere in the New York City or Long Island area – whether or not you receive a DAT – obtain at once the counsel and services of an experienced Long Island criminal defense attorney. Don’t wait to make the call.

Posting Bond and Making Bail

Being in the middle of an arrest can feel like a nightmare, particularly if you have to stay in jail for several days.  The only way to avoid staying in jail while you are waiting for your trial is to post bail.  If you are eligible for bail, your bail amount will be set at your arraignment.  If you decided that you want to post bail, you will need to make sure you have access to the amount and type of payments that the detention center takes.

What forms of payment are accepted?

There are several different ways to pay your bail amount.  Be sure to double check at your correction office for current limits on certain payment types.  Often accepted payment forms include:

  • Cash
  • Cashier’s/Teller’s check
  • Bank money order
  • Federal Express money order
  • S. Postal money order
  • Travelers Express Company money order
  • Western-Union money order
  • GOV-PAY via debit/credit card

 The Eighth Amendment to the U.S. Constitution clearly makes excessive bail against the law. Nevertheless, in the New York City and Long Island areas, the sooner you can get help from a skilled criminal defense attorney, the better. Your attorney may in some cases be able to have your bail lowered or have you released on your own recognizance. If you’ve been charged with any crime or violation, get the legal help you need, and consult promptly with an experienced Long Island criminal defense attorney.

What is a Bail Bondsman?

If you are unable to come up with the bail amount yourself, a bail bondsman may be able to help you.  Using a bond agent means that you put up a percentage of your bail, and they provide the rest. Additionally, the bondsman will often require collateral to secure the bond. The bondsman will provide the court with a Surety Bond, which will be the guarantee that you will appear in court on your trial date.  After you appear, the court will refund the bail amount to the bondsman, and the bondsman keep the percentage that you put up as your fee.  This helps you avoid staying in jail until your trial date.

Many bail bondsmen have offices located near the courthouse.  Bail bondsman must be licensed by the state of New York; make sure they hold a current, valid license.

When You’re Arrested

When you are arrested by the police, no matter in a public place, the street, or your home, you can expect:

  • To be handcuffed
  • To be placed in the police car and taken to the station

Police are only required by law to read you your Miranda Rights if they plan on questioning you further. However, this does not change the fact that they can use anything they hear you say, whether to them directly, on the phone, or to another inmate, against you. It is your 5th Amendment right to remain silent. Use it! Be sure to mention right away that you want to enlist the help of a lawyer. You have the right to have an attorney present during any and all questioning.

No matter what point you’re at with your case, a knowledgeable criminal lawyer will help make the whole process easier, while fighting to help you win your case.  From posting bail to sentencing, we at Mirsky Law can guide you through.  For help with cases in the Long Island, New York, Mineola, Suffolk and Nassau Counties area, give Mirsky Law a call about your particular situation.

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