Posted by Perry de Marco, Sr. on 6 May 2016

Even after forty years of practicing Criminal law, it absolutely shocks me that people are so ill informed about the constitutional rights which are guaranteed to them by the 5th and 6th Amendments of the United States Constitution and by the provisions of every State Constitution in our Country. The 5th Amendment to the United States Constitution Provides:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Similarly, Article 1 §§ 9 Of the Pennsylvania Constitution provides:

Rights of accused in criminal prosecutions.
In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

The language that we are referring to is similar in both the Federal and our State Constitutions, nor shall be compelled in any criminal case to be a witness against himself.

Hundreds of scholarly books and thousands of court decisions have interpreted the meaning of these provisions but I am not writing for lawyers I am writing for lay people. No person adult or juvenile, when confronted by the police or any other law enforcement official can be forced to talk to them. This applies in each and every instance where there is a police-citizen encounter. It is not limited to just to major crimes such as Rape, Robbery or Murder. The right applies to every encounter between police and citizen. For instance, here are examples of police questions: In a DUI stop, “how much did you have to drink tonight”. In a speeding situation, “Do you know how fast you were going” In a simple encounter, “do you have any weapons or drugs on you”?
Obviously our focus here is on the serious crimes but the point is to demonstrate the extent of the privilege. This discussion must also incorporate the provisions of the 6th Amendment, The right to Counsel. The 6th Amendment of the United States Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
6th Amendment Annotations”
Similarly, Article 1 §§ 9 of the Pennsylvania Constitution, supra, provides the same protection.
So the 6th Amendment guarantees the right to counsel in all criminal prosecutions, but the law in all states and Federally has been interpreted to extend not only to prosecutions but to all police-citizen encounters which occur under any circumstances. So here is the point and I can’t be more emphatic! If you or your loved ones and especially your children are confronted by the police, never, ever answer their questions without a lawyer being present with you!
Now you don’t have to be a lawyer to know that you have these rights. Anyone who has ever watched a police show on television knows about Miranda warnings, “You have a right to remain silent, anything you say may be used against you in court, you have a right to a lawyer” etc. The problem is that the police do not have to give you Miranda warnings until you are actually in custody and the focus or target of their investigation, so they can try to question you before hand, to get the evidence they need to arrest you, and its at that point that they may give you the Miranda warnings for the first time. In other words after you have already incriminated yourself. Remember, you don’t have to be in a police interrogation room, under hot white lights, in order to be questioned and the police do not have to be writing down what you say in order to be able to use your statements in court. Keep in mind that anything that you say written or oral, no matter where or the circumstances under which it is said can later be used against you in court. Now here’s the sad truth of the matter, even though most people know that they have these rights most Americans don’t take advantage of them. There many reasons for this but I’ll give you the main ones that I see every day in my Criminal trial practice.
First of all, cops are trained in interrogation. Even patrol officers quickly learn how to intimidate and weasel incriminating information out of people. Just watch the show Cops and you’ll see it. Second, most people are raised to tell the truth. Our parents tell us “I don’t care what you did but just tell me the truth and it will be O.K.” Third, and this is one of the major ones, the cops promise that if you talk everything will go much better for you. This one gets most people all of the time! Let me tell you a sad fact, cops are allowed to lie and make false promises to you in their effort to encourage you to talk and they can be extremely inventive with these deceptions. The point is that countless defendants have received the death penalty because they trusted the false promises of the police. As an aside, years ago I tried a multi-defendant murder case where in his closing argument the district attorney actually mocked all of the defendants for their stupidity in confessing to the police! Police are experienced at cajoling and threatening, “ if you don’t talk you’ll never see you kids again”, or “ I’ll make sure you will never see the light of day”, or “I’ll make sure that your bail is so high that you’ll never be able to afford it”, etc.
Many people talk because they think that they can outsmart the cop! It never, ever happens except in the movies! The only time this has ever happened is by the character Keyser Soze in the movie “Usual Suspects” Many defendants confess because they want to take the blame for a co-defendant and many times painfully regret that decision later when they and the co-defendant who they were trying to protect are both prosecuted.
So what should a person do when confronted with police questioning? The answer is simple. Just say “Officer, with all due respect, I insist on speaking with my lawyer before I say anything” Be prepared for a response, that is threatening, cajoling, or even apparently innocuous, like “come on it’s really not a big deal”, “tell me what happened and we can all go home”and so forth. Expect all of these reactions from the police. Stay calm, be polite, don’t argue or start reciting your Constitutional rights but stand your ground and politely insist on permission to call your lawyer.
Now how about the situation where you really don’t believe that you broke the law? Very simple, once again, insist on calling your lawyer. Why, because the tremendous benefit of this is that you can put your lawyer, assuming he’s a good criminal lawyer and knows what he is doing, on the phone with the cop and the lawyer can make at least an initial determination of wether or not you have a problem. If your lawyer is impatient or says just go and talk to them, it’s probably best to find another lawyer and don’t talk until you do.
Now this brings us to one of the most important subjects of this discussion. What to do when you your juvenile children get arrested. Here’s the scenario. You get a call that your child wether in school or at any other time or place has been taken into the principal’s office or arrested elsewhere for some alleged crime. You are called in before any questioning is initiated. Many times in the school situation, the principal and or a counselor and the police are encouraging your child to just tell the truth. Sadly, many parents absolutely destroy their children’s lives by doing exactly the same thing, i.e. encourage their child to talk on the theory that it’s only a juvenile matter and all will go better for the child if he talks. Horrible mistake! First of all, depending on the age of the juvenile and the alleged crime you should understand that certain serious crimes can be prosecuted in the adult system and the child can be sentenced as an adult and be caused to serve his or her sentence in adult prison. Rape, Sexual Assault, and Robbery, are examples of such crimes. Parents aren’t told this. In a school situation, the school, may very well have a conflict of interest, they don’t necessarily give a damn about your child, they just want to clear a mess off their table and protect themselves against civil liability. So if you are faced with such a situation what should you do? Hopefully, you already know the answer! Tell your child not to say a word and call your lawyer. I know that many people believe that a failure to speak or cooperate feels like an admission of guilt. Absolutely incorrect. The fact is, that the refusal to speak or cooperate is an assertion of an inviolate Constitutional right. If the case proceeds to trial, it is absolutely illegal and grounds for a mistrial for the judge, prosecutor, police, or anyone else to even hint at the fact that the defendant did not talk or cooperate with the police. This holds true in both juvenile as well as adult cases. One other point is that in certain cases the police may present you with a deal of some sort. Don’t fall for it. Hear me! They are not bound by any deal they make with you, as I said previously they could be lying. On the other they are bound by deals they make with your attorney and he or she can put many protections in place, in writing, to enforce such deals. So what is the bottom line? When you or a loved one are confronted by the police, insist on calling your lawyer and don’t say a word unless and until you are represented.
Another very important point is that Federal Agents, FBI etc. stand in a different position. Whereas you do not have to speak to them if they confront you, if against my advice herein, you decide to talk to them and lie, that constitutes a Federal Offense. Once again, insist on calling your lawyer.
Finally, please remember that we at the Law Offices of Perry de Marco, Sr. have forty years of experience in dealing with these issues. Please feel free to call us if the need arises. We are available 24/7. We can and will help.