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Criminal Defendants On Trial: Under Immediate Arrest

Posted: Monday, February 23, 2009

by Ira Still, Esq.
Law Offices of Ira Still

Under Immediate Arrest

The police have a chilling way of ushering a person into the criminal justice system: "You are under arrest!" Through the shock of these words you realize that you better comply with their directions or you might feel the sting of the taser, the bite of the police dog or the wrath of the night stick. Terror, anger and confusion fill the moment. You are on your way to the jail, the first appearance hearing, the bondsman's interview, the lawyer's office, the trial court proceedings and the jury trial. You are now inside the criminal justice system until the entire process is concluded.

What is a warrant or capias?

An arrest could be based upon a warrant. But these comprise only a small percentage of arrest situations. A warrant (or capias) is a document issued by the trial court. It is a demand that the police take you into custody immediately wherever they may find you. Since these previously issued court orders were based upon circumstances that you knew were in the works [like violations of probation, failure to show up for a court hearing, etc.], they shouldn't be a total surprise. You might blow a stop sign and get pulled over. The police run your driver's license and a capias appears on the screen. Within a very short time you will be under arrest.

Could I be arrested without a warrant?

Yes. The vast majority of arrests are made by police officers acting without a warrant. Suppose you are shopping. You walk to the door with packages in hand. When you get out to the parking lot, you're stopped by a security officer. He looks in your bags and finds the clothes you just bought. He asks, "Where's the sales slip?" You can't find it. "Come on back inside so we can straighten this out." The sales clerk doesn't remember you at her register. The police are called in. You are now under immediate arrest.

Imagine you are driving your friends around and stop at a store. They go inside. You can't see what happens but they come running out. They jump in and yell, "Drive, drive! Don't stop!" You follow their demands and drive off. A high speed chase ends with a swarm of cops standing around your car; guns drawn. They are screaming, "Out the car and on the ground." Later you learn that one of your friends tried to rob the cash register. When it went bad, he shot a man. You are being charged with felony murder. You are panic stricken and you are also under immediate arrest.

What if I try to resist the cops?

Let's address what to do and what not to do when you are being detained. Never try to fight the police. You will get additional charges. Don't try running away. You will get more charges and rough treatment. This is not a battle between you and the police. This is the police doing what the government has hired them to do. They are under a duty and they will not back down.

Go along peaceably. This will help you now and later it may help your case. As in all of life, humility conquers arrogance.

Don't try to talk your way out of it. You should only tell the police your name, age, address, and other personal background information. If you don't give them this identifying information you could get an additional charge known as resisting an officer. But that is where you must stop talking. SAY NO MORE!

How do I get them to stop all the questions?

Do not talk about the facts or circumstances of the case to anyone. Tell the detectives that you refuse to talk until you have an attorney. That is a key phrase in the law. Under the 5 th Amendment to the U.S. Constitution you have both the right to silence and the right to counsel. If you assert the right to silence by saying, "I do not want to say anything," the police can keep trying to get you to talk. If you begin talking about anything at all, the trial court may rule that you waived your right to silence. Only you can waive your rights, so don't speak.

If you say over and over, "I want to speak to an attorney," the law says the police must immediately stop questioning you until your attorney is present. When your attorney arrives, he will instruct the police that you won't be giving any statements.

Will the circumstances of the arrest be part of the court case?

The police will definitely testify in court about the arrest. They will tell the jury what you said and what you did. Keep these things in mind:

Police cars are equipped to take videos. Some can audio tape conversations. There are also video cameras in police stations and jails. These may be put into evidence in your court hearing or trial.
WARNING: Prosecutors use audio and video taped jailhouse visit conversations in trial. There is no right to privacy while in custody. Only talk about your case with your attorney.
The police might conduct a "show-up Identification." This is where the victim is brought to the scene of arrest to see if they can identify you. Be calm and collected. Do what the police instruct you to do.
If your friends are arrested along with you, don't talk to them about the case either. Don't communicate with them at all. This could seriously impact your case.

The terrifying experience of being arrested will come to an end. From the initial police stop through the booking process, this might be the worst day of your life. The single most important thing to keep in your mind is don't talk to anyone except your attorney about the facts of your case.

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