When to Invoke the Right to an Attorney
Most people are familiar with the constitutional guarantee of the right to counsel, but the question of when to invoke it can be a confusing one. As a practical matter, the right to an attorney can be invoked at any time after the suspect has been placed under arrest and read his or her Miranda rights. It is questioning prior to arrest, however, that leads to problems.
The police or other law enforcement officials are allowed to ask you questions prior to arresting you or anyone else for the purposes of gathering information as part of a criminal investigation. These questions are not limited by the Constitution or any other law as to the subject matter about which the police can question you. Persons answering these questions need to be extremely careful as to which questions they answer and what answers they give. How forthcoming an individual chooses to be is probably best determined by how involved in the criminal activity he or she is.
For example, a person who was an eyewitness or innocent bystander and had absolutely nothing to do with the criminal activity under investigation may want to cooperate with the police and assist them in their investigation. Of course, there is absolutely nothing wrong with being helpful to law enforcement. A bigger issue arises, however, when the individual who is being questioned may be a suspect with respect to the criminal activity being investigated.
When you find yourself in a position where the police are questioning you regarding a crime and your answers will or may incriminate you, the best course of action is to inform the police that you will not answer any further questions until you speak to an attorney. Every individual has a constitutionally granted right against self-incrimination, and this right should be asserted during questioning when the answers to your questions have any tendency to make you appear involved in such criminal activity. This right should be asserted at the first sign of possible self-incrimination, for reasons that will be discussed in tomorrow’s article.
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