Interviewer: How do I know, or how does someone know if they’re being investigated for a crime?
Brian Geno: Sometimes people don’t know they’re being investigated, but if they have received a call or a visit from the police, or a visit from people who are asking about illegal conduct that they’ve done, then they can be fairly certain that they’re a suspect. Sometimes people who are just witnesses get those same kinds of calls, but if you’ve done something wrong, you would know that when those calls come or when people start asking about you that you’re being investigated.
Now, moving beyond the pure investigation phase and into the phase where some paperwork has been created, once a person has been charged, they have to be brought before a magistrate. The police and the courts only have a certain amount of time to bring a person before the magistrate, and if they wait too long, the case may get stale, and they may lose their right to bring the case at all. It’s not like it’s super fast, but they have deadlines that they have to meet. They’re not going to wait forever as the case proceeds.
You hear about bigger cases that don’t proceed to court right away, and they have longer deadlines for bigger cases. I read about a case today – a Massachusetts case – where a person wasn’t charged for a murder until two years afterward, when he was charged and convicted. There was another case that recently made the news, where it’s been 40 years, and if he’s ever found, he’s going to be prosecuted. For some bigger ones, there is no effective timeline, but for the typical ones that people may see, that they may be involved in, there are deadlines that have to be met.
Interviewer: Am I obligated to meet with police or detectives if they call me up?
Brian Geno: You are not. You’re definitely not. A person has the right to remain silent. A person has the right to do nothing to help the government in prosecuting their case. The statutes sometimes give people limited rights to where they have to participate. For example, according to the law in the state of Virginia, if you’re pulled over, the police officer has the right to ask you for your driver’s license, and you are obligated to give it to him. If you don’t give it to him, he doesn’t have to let you drive away. Also, another one is that under Virginia law, you have the duty to take a breath test if you’ve been charged with a DWI. That’s a very specific test that happens at the police station, but nevertheless, it is a duty under the law that a person must comply with.
As far as everything else, they don’t. If the police come knocking at your door, they may choose to come in and arrest you. They may choose to come in and search, but they can only do that if they have observed special procedural things, like obtaining a search warrant, or they’ve been given permission by some other authorized person or they have probable cause for an arrest. In those situations, they don’t need your permission and they can arrest you, but you still don’t have to talk to them, even if you’ve been arrested.
Interviewer: How and when do Miranda Rights actually come into play?
Brian Geno: Miranda has been typically misconstrued a lot of times because of television. People mentally need a crutch, and so they adopt the TV version.
Miranda stands for the proposition that a person must be read their rights to remain silent and the right to an attorney if they are in the middle of a custodial interrogation. That does not apply to an arrest or a stop. A stop is where you’re not arrested, but the police stop you for the purposes of starting a ticket. They don’t have to read you your Miranda Rights if they’re not really asking you any important questions, and asking your name is not one of those.
Also, if you’re not under arrest, if they just stop you on the side of the road and say to you, “Have you been drinking tonight?” that’s not a custodial interrogation. Custodial means that you’re under arrest, so if you’re not under arrest yet and they ask you a question like, “Have you been drinking tonight?” that does not mean that you can have your case dismissed simply because they didn’t read you your rights. Your rights are there for a reason, but they only apply under the custodial interrogation context when it comes to Miranda.