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Legal VIEW

'Mum's the Word' at the Time of Arrest

January 22, 1987|JEFFREY S. KLEIN

You have the right to remain silent.

You have the right to have a lawyer present while you are questioned.

If you cannot afford a lawyer, one will be appointed for you.

If you hear these words, you'd better be watching a television detective show or you are in big trouble. Because if you're not watching TV, you've been arrested, and the police officer is giving you the so-called Miranda warnings. (The warnings are named after a 1966 Supreme Court case, which first required that, upon your arrest, you be informed of your constitutional rights.)

Proper Conduct

What should you do, and what should you know, if you are arrested?

Most criminal defense lawyers agree with Pepperdine University criminal law Prof. Paul G. Flynn, who says simply: "If I were arrested, I'd get hold of a lawyer."

But that's not always easy. Even if you can afford a lawyer, you first have to find one, and you want to make sure it is someone who is experienced in criminal defense work and familiar with local procedures and the prosecutor's staff. Some have suggested that you should have the name of an experienced defense lawyer in your home phone book, just in case you're one of the police's unlucky mistakes.

While you, your family or your friends are looking for a lawyer, experts agree, don't say anything to anybody. "The first person you should talk to is your lawyer," Michael Lightfoot, a Los Angeles criminal defense lawyer, explains.

There is a natural inclination to explain, especially if you're innocent. But even if you're guilty, or don't know whether you've done anything illegal or not, it is only human to want to tell your side of the story.

Resist that temptation, most criminal lawyers say, because just as the Miranda warnings promise, anything you say may be used against you later. Even more dangerous, you may not realize exactly what you are saying, or that what you are saying is giving something away.

"It is just not wise to provide information to the police if they view you as the subject of a criminal charge," Lightfoot says. "You are providing them with, as the Supreme Court has said, a link in the chain of evidence."

It has almost always been standard advice not to talk to the cops. "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances," wrote Supreme Court Justice Robert H. Jackson in a 1949 case.

"The danger is that discussing matters with police may lead to other bits of evidence," Flynn adds, and you may indirectly give up other constitutional rights, such as the right to be free from unreasonable searches and seizures.

"An innocuous question may prove to be a vehicle to get evidence which will help (the police) in their prosecution," Lightfoot agrees.

Traumatic Experience

Being arrested is a traumatic experience, presumably even for a hardened criminal. You have little time for reflection to assess how to make your case most forcefully. Most people don't understand the complex array of constitutional rights and protections afforded those accused of crimes. So you should wait and consult your lawyer. And there may be strategic decisions that you haven't even considered.

"It is important for individuals to be very, very careful at the initial arrest stages, because things happen quickly and police officers are trained professionals at getting information," Flynn explains.

Flynn, a former federal prosecutor himself, concedes that an innocent person, mistakenly arrested, may want to explain the situation to the police, if the alternative is to wait in the county jail through the weekend while the family finds a lawyer, but only if "you are confident you are on solid ground," and you're willing to take the risk. Other lawyers insist that you should, in almost every circumstance, just sit quietly, respectfully decline to answer, and wait for a lawyer.

To the uninitiated, the criminal justice system can be a strange and intimidating process, to say the least. It is almost impossible to explain the entire process, including your various constitutional rights, in simple, understandable terms, but the State Bar has done a good job in a pamphlet entitled, "What Should I Know If I Am Arrested?" For a free copy, send your request, along with a stamped, business-size envelope, to State Bar Pamphlets, 555 Franklin St., San Francisco, Calif. 94102.

Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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