Queens County Bar Association
Martindale Hubbell - Distinguished 2023

Should Someone Ever Speak to the Police in the Absence of a Lawyer?

That is a very simple and a situation that happens all the time. If the police say that they want to talk to you, be very cooperative with them. If they tell you they want to talk to you on a certain date, I usually would tell a person to say “Yes, okay. By the way, Officer, can you give me your name and telephone number?” Then the very next thing you do is you call your lawyer. What will happen then is that the lawyer obviously will want to sit down and speak with you as soon as possible. The lawyer then generally will call the detective and ask what he wants my client to come in for. Most of the time, when the police say they want to talk to you, the real reason is they want to arrest you.

It is much easier to simply have the person come down to the precinct than to have to go out and pick them up somewhere. So in most situations, when a detective says, “Mr. Jones, we’d like to talk to you about an incident that happened on such and such date”, all they want to do is place you under arrest. When I call the detective, the first thing I will say to him is, “Officer Smith, I understand you want my client to come in. Do you want to have him come in because you want to arrest him?” Unlike when the officer is talking directly to my client, the officer will tell me the truth and say, “Yes. I want to arrest him” and I can generally find out what the charge is.

At that point, when the officer knows that there is an attorney he also knows he cannot question my client. If he does, it would not be admissible in court. Of course, I would tell him anyway do not question my client, but he knows even without my request that he is not allowed to question somebody who has an attorney. So, just by my talking to him, I have very nicely, without even saying anything, prevented my client from making the statements which, as we said before, almost always will be more harmful than helpful. Occasionally, when I ask “Do you want to arrest him”, the detective will say, “Well, we just wanted to talk a little bit about this case.”

At that point, both the detective and I know that it means he does not have enough evidence to arrest him and he wants my client to say something that will incriminate himself and give the officer enough evidence to arrest him. Both the officer and I know that is not going to happen because, when the defendant has an attorney; any statements that he makes would not be admissible. At that point, that is a very good thing because it means that I have probably kept my client from being arrested simply by picking up a telephone to call the detective and now the detective knows that the client has an attorney so he cannot question him.

When Do Miranda Rights Come Into Play For A Criminal Case?

“Miranda Rights” means simply that, in order to question somebody, the officer has to properly read him his Miranda Rights advising him that he has a right to remain silent and has a right to have an attorney. Of course now, since he has an attorney, the officer cannot question him as we said before. All of Miranda rights issues take place before I ever come on the case. The defendant has been arrested, he has been in front of the court, now he is out, and he comes to me and he is discussing the case with me.

He says, “They never read me my Miranda Rights, so what does that mean?” My next question is, “Did you make any statements?” If the client says, “Well, no, I didn’t make any statements”, well then, the Miranda Rights do not matter because Miranda Rights simply protect you from having statements that you made without warning used against you. So if you did not make any statements, then Miranda Warnings are irrelevant. If, the defendant had made a statement, obviously then I will want to know whether or not the defendant was properly read his Miranda Rights. These days, the issue almost never comes up. The police, when they make an arrest, read the Miranda Rights from a card. Most people have no idea what is being read to them, but the Miranda rights are read and it is a very rare case where the Miranda Rights apply in a criminal case. It happens occasionally, but very rarely.

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