QUESTIONS:
- SHOULD ONE RESPOND ?
   

At any time, one might unexpectedly find oneself being subjected to a law enforcement officer's interrogation. This might occur in conjunction with a detention, or it could occur in conjunction with an actual arrest. Therefore, it is the purpose of the following material to provide some brief information regarding one's rights in the situation of an interrogation by the police.

In the course of an investigation, law enforcement officials may sometimes, detain an individual for the purpose of questioning. A detention, as it is referred, most commonly occurs in an ordinary public place, and would by it's nature, just like an actual arrest, limit one's freedom to simply walk away. Unlike an arrest, however, a detention usually lasts only for a comparatively short duration, and generally would not involve any movement of the individual from that particular location.  With that in mind, what would be the appropriate way to respond when one is detained for questioning ?

First, it is important to realize that for the most part, one is not required to answer any of their questions. Whether one should in a particular case is a more difficult question, because it would obviously depend upon the particular circumstances of that case.  Although one does have certain rights, a law enforcement officer is unlikely, nor necessarily required by law, to tell an individual, what they are.  Although, one probably should tell an officer, if asked, who they are and where they live, one would be entitled to refuse to answer any other questions.

As opposed to a detention, where the police, as part of a criminal investigation, may question individuals without advising them of their rights, once they make the decision to make an arrest or take an individual into custody, the courts have held that Miranda warnings would have to be given. What that means, in essence is that, before they could actually question, or "interrogate" an individual, they would be required to specifically advise them pursuant to the Miranda Decision.

Once Miranda warnings have been given, questioning can then only occur if one then indicates that they fully comprehend their rights, and voluntarily give them up.  In other words, one would have the right to remain silent, and would not be required to answer any questions other than to give one's name, address, and perhaps show some identification.

One should perhaps anticipate that the police may request that they be provided with certain physical evidence. Probably the most familiar situation would be if one was suspected by the police of drunk driving and they required submission to a chemical tests to measure the amount of alcohol in one's system. Be aware that one could refuse, but if one were to do so, there may be some rather significant consequences. In the case of a refused chemical test, that refusal could result in the suspension of one's license and driving privileges for up to one year.

A question that sometimes arises is whether one would you have irrevocably waived one's rights if they were to have initially agreed to be questioned, but then, at some point during the questioning, changed their mind ?  The courts have held that the answer to that question is no !  Therefore, as soon as one has informed the police that they wish the questioning to terminate, or that they wished to have an attorney present, the police would thereafter be required to discontinue all further questioning.

Finally, one should realize the sometimes subtle distinction that exists between  responding to an interrogation by the police, as opposed to spontaneously volunteering information and statements to the police.  The courts have held that while the former is considered protected under Miranda, the later is not. The critical significance of that is if  warnings are not given, an attorney representing you may be able to bring a motion to preclude the use in court, of any interrogative responses elicited by the police.  Not that such motions are always successful, or that if successful, such motions will necessarily or automatically result in a dismissal of one's case.  But it is nonetheless a right that one would definitely want preserved so that an attorney can at least address the issue.

Hopefully, the above information, if nothing else, will at least impress upon you the importance of acting under the advise of counsel in matters of this type. Therefore, if you have recently been the subject of an interrogation by the police, or have reason to believe that you are about to be, it is absolutely critical that as soon as is possible, you consult with and seek the advise of an attorney possessing the training and experience to handle matters in this particular arena.

                                               ALL RIGHTS RESERVED, DOUGLAS HOLBROOK, 2001