Lustick, Kaiman & Madrone, PLLC
222 Grand Avenue, Suite “A”
Bellingham, WA 98225
Telephone: 360 685-4221 | FAX: 360 734-4222
Criminal case law for non-lawyers can be confusing and complicated, and many people come to believe some odd things. Does my criminal case get dismissed if an officer doesn’t read me Miranda rights? Is eyewitness testimony really evidence? Sometimes the answers are clear and sometimes they are complicated. Rumors and misconceptions do not make it any easier to untangle the truth. If you or someone you know has had a run-in with the law, here’s the straight truth about the most common myths that we as Whatcom, Skagit, and San Juan County criminal defense lawyers have to confront every day:
1. If the police didn’t see me do it, I cannot be arrested.
Not true. In many cases, when a person is arrested in a criminal case, legal basis for the arrest (probable cause), is entirely based on witness testimony about events that happened while the police were not around. Eyewitness testimony often is very strong proof that a crime was committed. Police investigators are trained to piece together testimony from witnesses and reach conclusions. Witnesses can sign sworn interview statements and often identify alleged perpetrators and flesh out circumstances of the alleged events.
The police can also sometimes obtain DNA or fingerprints which can lead to identification of a suspect. Once police have probable cause to believe someone has committed a crime, they can arrest someone in a public place without a warrant. If the police want to arrest a person at their residence, a warrant will be needed. But the bottom line is, even if an alleged crime was committed outside of the presence of a police officer, there is no rule saying a person cannot be arrested.
2. The police have to read me Miranda Rights.
With the popularity of crime TV shows like Law and Order and NCIS, many people who get arrested for an alleged crime think that the police must read them their rights right away. Under Washington State law, this is not true. Persons who are arrested for in criminal cases have the right to remain silent and to speak to a lawyer, but the police only have to inform people of these rights when they are held in custody and then questioned about the offense. If the police arrest a person but do not intend to question them, there is no requirement for a rights advisement. Often arrestees believe that when police do not read the Miranda Rights, it is an automatic basis for dismissal of the criminal change. That is a totally false notion.
3. I have a clean record, which means I will get off easier in my criminal case.
The overwhelming majority of criminal defendants have no prior criminal record. While prior criminal convictions can be the basis for an increased penalty, the laws in Washington State rarely allow for lessor punishments for first time offenders. The place that a clean record helps out is in the plea bargaining process. For individuals who have committed some offense, having a clean record can sometimes result in reduction to a lesser charge, meaning lesser penalties.
4. At trial, if I don’t testify, the jury will assume I am hiding something.
Defendants facing a criminal trial almost never testify because they will waive of the constitutional right against self-incrimination by testifying. This will expose the defendant to intense cross-examination on the witness stand by the prosecutor. However, when the defendant does not testify, the judge also instructs the jury that the defendant has an absolute right to not testify. They jury is also told that they cannot consider the defendant’s silence during deliberations.
Testifying at one’s own trial is an extremely emotional thing. No defendant who testifies ever avoids cross examination by the prosecutor. While the jury might collectively suspect that a non-testifying defendant is withholding information, the alternative of unintentionally confirming guilt with a contradiction or incriminating statement is much worse. If the prosecution has not proved each and every element of the charged offense beyond a reasonable doubt (the highest evidentiary standard), defense attorneys typically do not have the accused testify.
5. When stopped by police, you have to answer all of police officer’s questions.
False! All persons questioned by the police have the right to decline to answer questions. Declining to answer questions is not a crime. It is not against the law to refuse to police questions. Always remember that you have the right to remain silent and you have the right to speak to a lawyer. A simple rule to follow in encounters with police is to ask if you are free to leave. If you are, the best thing you can do is to politely leave without answering questions. If they reply that you aren’t free to leave, you should politely ask for an attorney and remain silent.
We offer a free one-hour consultation for criminal cases and we will appear for free at your first court hearing. Please call (360) 685-4221 to schedule a meeting with one of our defense team members. Or reach us through our web info wiki here.