Many Utah citizens incriminate themselves (make themselves look like they are guilty of a crime) by talking to the police. When asked why they decided to talk, the common response is something like, “The police told me they would work with me.”

And, unfortunately, the result of their speaking in good faith is often hefty criminal charges. Cops and others will usually start off by saying, “I need to ask you some questions.” That suggests you must talk. What they should say is “I would like to ask you some questions, but you have a right not to talk to me at all.” So, don’t be fooled by the “need” word. As soon as you are asked anything, you should say, “I do not want to answer a single question without my attorney present.” This is critical. And keep saying that if you need to. You have a right to remain silent, and the right to an attorny.

The Founding Fathers gave us the Fifth Amendment of the Constitution to ensure that police brutality and force cannot be used to gain a confession. The Fifth Amendment states in part: “. . . nor shall [any person] be compelled in any criminal case to be a witness against himself”. In other words, an individual does not have to speak to the police when the police are seeking to question him about a crime that they think he may have committed.

Even witnesses and victims do not need to talk anybody unless they are ordered to do so by a Judge, or for other very limited things. This surprises many people because they think that only those accused of a crime can remain silent. Often “victims” of domestic violence, for example, think the police have totally overreacted, and don’t want to give them any information, but they are led to believe they somehow have to give the police a statement. The police will often say things like, “I just need to ask you a couple quick questions.” From there, they are off to the races. Witnesses do not get read their rights, which sadly, leads them to believe they have no rights, which is false.

The Supreme Court offered protection for our right against self-incrimination when Miranda v. Arizona was decided. Justice Warren wrote the legendary opinion and said the following: “Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

For Miranda to be applicable there must be two things – custody and interrogation. Justice Warren made it very clear when a person is in custody. They are either arrested, or their freedom of action is deprived in a significant way – in other words, they typically would not feel free to leave. It is a good idea for a person to ask a police officer if they are free to leave.

The Supreme Court put forth the following test in, Rhode Island v. Innis, to determine if someone is being interrogated. The test says: “The term interrogation refers not only to express questioning, but also to any words or actions on the part of the police (other then those normally attendant to arrest and custody, e.g., “routine booking questions”) that the police should reasonably expect to elicit an incriminating response.”

The two tests seem pretty straight forward, but reaching a conclusion is not always as easy as it may seem. For example, many Utahns are stopped by the police as a result of speeding or violating another traffic law. Their freedom of action is definitely taken, but the Supreme Court held that, “A motorist stopped for an ordinary traffic violation is not in custody for Miranda purposes.” Pennslyvania v. Bruder. However, the Utah Supreme Court has held that, “A suspect not under formal arrest may nonetheless be in custody for Miranda purposes.” State v. Wood, 868 P.2d 70 (Utah 1993).

In conclusion, the best approach when you are being questioned about breaking the law is to not say anything. Because, later claiming that you were not read your rights might not be enough to keep your own words from being used against you.

Here are the “magic” words you can use: “Officer, I totally respect that you have a job to do, but am I under any obligation to answer any questions? Also, I do not want to answer anything, or say anything without my lawyer present.”

The office cannot lie when you ask him that question. Once he says “no”, say this, “Well, thank you for letting me know. I choose not to any questions then.”

Remember: Witnesses can, and often should, remain silent, too. If you are ever in doubt, ask the magic words above. And remember, anything you say can and will be used against you.

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