What to Do If the Police Contact You Before Charges Are Filed in California
You’re going about your day when you get a phone call from the San Francisco Police Department. They assure you that no charges have been filed, but say that they just want to ask you a few questions about a case. What should you do?
The interview described above is called a pre-charge investigation or interview. If the police invite you to a pre-charge interview, saying the wrong thing could turn a minor situation into a major case.
This article explains your legal rights during a police interview, including how to exercise them. It also discusses how a Marin County criminal defense attorney can help.
The Fifth and Sixth Amendments: Protecting Suspects from the Police
The Fifth and Sixth Amendments both protect suspects during police interviews.
The Fifth Amendment
The Fifth Amendment says, “No person… shall be compelled in any criminal case to be a witness against himself.” The U.S. Supreme Court relied on this amendment when it decided Miranda v. Arizona. Miranda established that under certain circumstances, police officers must read suspects their rights, including the right to remain silent and the right to an attorney. Later cases established that the attorney must be paid for by the government if the suspect cannot afford it.
The Supreme Court has said that the rights they outlined in Miranda only apply when someone is subject to “custodial interrogation.” A person is in custody when they are not free to leave. The classic example of being in custody is being in a jail cell or being placed under arrest. Interrogation happens when the police actively ask you questions about the crime. So, asking, “Where were you on the night of March 10?” is interrogation, but asking your name or address is not.
You might be surprised to learn that Miranda rights must be “invoked.” This means that the police won’t assume that you want to assert your rights – you have to tell them. So, staying silent won’t be treated as invoking your Miranda right to silence. Instead, you must say, “I invoke my right to remain silent.” Likewise, saying, “I might want to maybe talk to a lawyer,” isn’t enough. You must say, “I am invoking my right to an attorney under the Fifth Amendment,” or something similar.
The Sixth Amendment
While the Miranda warnings come up in nearly every legal drama, most people are less familiar with the Sixth Amendment. The Sixth Amendment says, “In all criminal prosecutions . . . . the accused shall . . . . have the Assistance of Counsel for his defence.” So, the Sixth Amendment requires that a defendant have legal representation at every stage of a criminal case. However, these rights only begin after formal charges are filed.
Fifth and Sixth Amendment Rights During Pre-Charge Interviews
Pre-charge interviews present interesting issues under the Fifth and Sixth Amendments. Because no charges have been filed, the Sixth Amendment generally doesn’t apply.
As for the Fifth Amendment, most cases have said that voluntary interviews aren’t custodial for Miranda purposes. After all, the person is voluntarily talking to the police, so they should be free to leave at any time. However, a voluntary interview could become a custodial interview. For example, if the police interview you in your own home, it’s generally considered non-custodial. However, if the police limit your movement within your own home, courts might view it as a custodial interaction.
Here’s the bottom line: The Sixth Amendment right to counsel won’t apply in a pre-charge interview because no formal charges have been filed. The Fifth Amendment right to counsel could apply if the voluntary interview becomes custodial.
Protecting Your Rights During a Pre-Charge Interview
Talking to the police is dangerous. They use special tactics to get people to talk, and while you might think your innocence will shine through, about 30% of all exonerated prisoners gave a false confession. Even if you don’t give a full confession, the police will use anything and everything you say against you.
In light of these dangers, what’s the best course of action?
- You do NOT have to talk to the police.
If the police invite you to the station or want to come to your home, you do not have to go. There is no law that requires you to do so.
- You have the right to remain silent.
Even if the Fifth and Sixth Amendment rights to counsel don’t apply, the right to silence certainly does. In other words, if you choose to go to a voluntary interview, you don’t have to answer their questions.
- You have the right to have (your own) attorney.
Under Miranda, once you ask for an attorney during a custodial interrogation, the police must provide an attorney for you at no cost. Additionally, they must stop questioning you.
In a non-custodial setting, such as a voluntary pre-charge interview, things are trickier. You can still ask for an attorney, but legally, the police don’t have to stop questioning you while they wait for the attorney to arrive. Also, they don’t have to provide a free attorney, such as a public defender. So, your best bet is to bring your own attorney to the pre-charge interview. If your attorney can’t attend, you can say, “Please refer any further questions to my attorney.”
What To Do if the Police Ask for a Pre-Charge Interview
If the police invite you to an interview, you have the right to decline. If you decide to participate, remember the following dos and don’ts:
- DO
- Contact your attorney immediately
- Ask your attorney to attend the interview
- Remember that you can remain silent
- DO NOT
- Answer any police questions about the allegations
- Consent to any searches of your home or items
- Get rid of any potential evidence – including digital evidence or social media posts
- Contact any alleged victims or potential witnesses
If you decide to talk to the police before charges are filed, a Marin County defense attorney can help. Your lawyer can:
- Talk to the police on your behalf
- Give them evidence that proves your innocence
- Prevent you from giving a harmful interview
- Have discussions with the prosecutor
If you’ve been contacted by the police and need help protecting your legal rights, contact Brownstein Law Group. We will fiercely protect your rights at every stage of a criminal case from pre-charge to trial. Call 415-965-6183 or use our online form to schedule an appointment today.