ARRESTED IN VIRGINIA - WHAT TO DO?
Arrested? You need experienced counsel from Hull Street Law. What to do if arrested in Virginia?
1. Keep Silent - Say Nothing!
Nothing you say that is helpful to you can be used in court – it will be “hearsay.” However everything you say that can be used against you is admissible against you!!! Further, the things you say may be taken out of context, misinterpreted or even recounted falsely. If you simply respond, “I plead the 5th” there are no admissions that can be used against you.
The warnings (which have come to be known colloquially as “Miranda rights”) are: as a suspect, “You have the right to remain silent, that anything you say can and will be used against you in a court of law, that you have the right to the presence of an attorney, and that if you cannot afford an attorney one will be appointed for you prior to any questioning if you so desire.” See Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 2330, 147 L.Ed.2d 405 (2000) (quoting Miranda, 384 U.S. at 439, 442, and 479, 86 S.Ct. at 1609, 1611, and 1630). Recent case law requires you to actually assert – “I plead the 5th” or words of similar import to prevent the state from using your silence as an admission of guilt.
2. Do NOT volunteer any information.
The police do not have to “read you your rights” with every encounter that they have with you! Miranda applies only to “custodial arrests.” Let your attorney work with the police – you should keep your mouth shut.
Fundamentally, the Miranda rule “does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.” Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 1360, 63 L.Ed.2d 622 (1980). The Miranda guidelines are directed toward police conduct…. “The duty of giving ‘Miranda warnings’ is limited to employees of governmental agencies whose function is to enforce the law, or to those acting for such law enforcement agencies by direction of the agencies; … it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement.” Mier v. Commonwealth, 12 Va.App. 827, 830, 407 S.E.2d 342, 344 (1991) (emphasis added) (citation omitted) (concluding that a private security officer’s failure to give Miranda warnings before questioning a shoplifter did not render the suspect’s statement inadmissible). But see Estelle v. Smith, 451 U.S. 454, 463-65, 101 S.Ct. 1866, 1873-74, 68 L.Ed.2d 359 (1981) (to be admissible against defendant at the penalty phase of capital murder trial, defendant’s statements to court-appointed psychiatrist must have been preceded by Miranda warnings); Mathis v. United States, 391 U.S. 1, 3-5, 88 S.Ct. 1503, 1504-05 20 L.Ed.2d 381 (1968) (Internal Revenue Service investigator was required to advise defendant, then in prison for other offenses, of his Miranda rights before questioning him about instances of tax fraud). J.D. v. Com. 42 Va.App. 329, 334-335, 591 S.E.2d 721,724 (Va.App.,2004)
3. You need an attorney to protect your rights!
You are entitled to a fair and impartial trial, and you are presumed innocent until proven guilty and you have no burden to present any evidence and you should not be convicted based upon any preconceived views, but the verdict must be rendered based solely on law and evidence presented at trial. U.S.C.A. Const.Amend. 6; Const. Art. 1, § 8; Code 1950, §§ 8.01-357, 8.01-358. Cressell v. Com. 32 Va.App. 744, 531 S.E.2d 1 (Va.App.,2000)
The materials are prepared for information purposes only. The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.