Many people at some point in their lives are stopped by the police or have some encounter with the police. It is smart to have at least a basic understanding of your constitutional rights and what to do not do in these situations.
Do Not Consent to Searches
In order for the police to search you they need what is called probable cause. Do not make their job easier to find incriminating evidence. You should never consent to a search, but of course you should also never physically resist one. If asked, simply decline. If pressed about it, simply reply that you want to preserve your rights. Keep in mind even if you know that you don't have anything illegal it still isn't a good idea to consent to search. If you are pulled over in a vehicle, searching can entail you and your family sitting on the side of the road while it is conducted. Searching can also involve possible damage to your vehicle. Additionally if someone else occasionally drives your vehicle, you can never be certain there isn't anything illegal in it. It won't be as easy in court to claim someone else left the contraband in your car and you didn't know about it. Your home is considered to have the greatest Fourth Amendment protection against unreasonable searches. The police would need a warrant if they want to search your home. Unless you consent. The police can search anywhere, including your home if you consent. If police want to search your home then definitely ask to see a warrant.
Ask If You Are Free to Leave
If you are stopped by the police on foot it often feels like you aren't free to leave and end the encounter. You may be surprised, however, how often the prosecutors argue the encounter was voluntary up until the moment the police discovered the illegality at issue. This is important because you have no Fourth Amendment rights concerning a voluntary encounter. The police are able to walk up to anyone and engage in a consensual conversation.
This is why it is always important to ask if you are free to leave. In order for the police to detain you they must have what is called "reasonable articulable suspicion." This suspicion must be more than a hunch. The officer has to have specific reasons why he believes you committed a crime, are about to commit a crime, or criminal activity is afoot. Asking if you are free to leave can immediately end the encounter if the officer knows he doesn't have enough for reasonable suspicion at that juncture. It also helps your case later if there is a basis to suppress evidence against you because the officer detained you without reasonable suspicion.
Do Not Volunteer Information or Make any Admissions
We've all heard of "Miranda Warnings." It is absolutely true that "Anything you say can and will be used against you." But you should also be aware that things you say can and will be used against you before you are even given that warning by the officer. Typically you won't get that warning until you are already under arrest. You still may never get that warning unless an officer is questioning you. Statements you make before being given that warning and before you are arrested are still admissible against you as voluntary statements. It can be incredibly difficult later to win a case when you have volunteered incriminating information.
If You Get Arrested Ask for An Attorney
You could end up in an interrogation room after being arrested. Often the police will give you a Miranda warning form that has several questions on it. The form will ask:
Have You Had Your Rights Read to You?
Do you Understand Your Rights?
Do You Wish to Answer any Questions?
Are you Willing to Answer Questions without an Attorney Present?
You should absolutely not answer any questions. The first thing you should ask for is your attorney. The case law is clear that if you ask for an attorney that ends the interrogation until you are provided one unless you reinitiate the communication. You don't know what the police know. They may not know anything and are depending on you to give them incriminating information to prosecute you. Do not think you can talk your away out of it. You cannot know what information may even be incriminating. Merely acknowledging the location you were at on a particular date may be extremely incriminating. The best course of action by far is to ask for an attorney to stop the interrogation.
The Police can and will lie to you
The ability of the police to lie to you has been repeatedly upheld by Courts. This is another reason why you never agree to any questioning. The police can tell you your friends are all saying you did it. The police can tell you they have your DNA or fingerprints at the crime scene. Undercovers obviously can lie to you about evening being police. Some states have some exceptions on how far the police can go with lying to you but there is a broad spectrum of fibs the police can tell you in order to get you to confess or give them information to assist in prosecuting you or someone else.
The right to a trial by jury is a hallmark of our criminal justice system. Article III section 2 of the Constitution says “The trial of all crimes, except in cases of impeachment shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed.” In accord with the Sixth amendment “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 where the crime shall have been committed.” This mandate for a right to a jury trial in the United States Constitution is flagrantly violated across the country. Washington DC is particularly an egregious example of it.
In the nation’s capital, a defendant does not have the right to a trial by jury unless the defendant is charged with an offense that carries a maximum sentence higher than 180 days in jail or a $1000 fine. It isn’t difficult to imagine how much destruction can occur to someone’s life if they are removed from society for 180 days. Such individual likely won’t have a job anymore after a 180 day absence and may lose their place to live. There is a plethora of study into the other various collateral consequences of a criminal conviction. To increase the potential injury, the DC Code allows the individual to be charged with up to four counts each carrying a maximum of 180 days in jail, and the defendant still would not have the right to a jury. The defendant can be sentenced, if convicted, in a bench trial (a trial where the judge decides if the defendant is guilty) to the maximum for each count to run consecutively. This means a defendant in one case charged with only misdemeanors can be convicted and sentenced up to 720 Days in jail and a $4000 fine without ever seeing a jury of her peers.
This is intentional. Almost every misdemeanor in Washington DC has a maximum of 180 days in jail and a $1000 fine. The blatantly obvious purpose is to deprive a defendant of a jury. In the instances where some misdemeanors carry a sentence of a little over 180 days, such as “threats”, the United States Attorney’s Office charges these defendants with “attempted threats” instead, to purposely avoid the defendant having the right to a jury. Jones v United States, 124 A.3d 127 (2015). In DC, when “attempt” is tacked on to a misdemeanor, the maximum becomes exactly 180 days in jail; the perfect amount to deprive someone of a jury.
The DC Council has occasionally made some attempts to address this. One of which is a specific statute that gave a defendant the right to a jury trial when charged with assault on a police officer. DC Prosecutors outsmarted them, however, by only charging defendants with simple assault (maximum 180 days and a $1000) even if the assault is on an officer. There are no rules against this. The DC Court of Appeals has actually upheld it. Coleman v United States, 194 A.3d 915 (2018).
Why do prosecutors do everything they can to avoid a jury trial? Bench trials are more conducive to mass incarceration. Jury trials take much longer. A defendant’s individual case gets exponentially more attention during a jury trial than her case otherwise would get with a bench trial. Picking a jury takes time. During a jury trial, The Court, acting as a referee, has to carefully consider what is fair for the jury to know and not know. Jury instructions have to be formulated to give to the jury to explain to them what the law is. When the jury is the fact finder, the jury doesn’t even know if the defendant is currently in jail or not. The Court has to make sure the defendant puts on a suit and is never seen by the jury with an orange jumpsuit on. In a Bench trial, prosecutors don’t have to give an opening statement and explain what their evidence will show. An opening statement is mandatory in a jury trial.
In a bench trial, the judge acts as both the referee and the factfinder; this can be problematic for a number of reasons. The judge will know the defendant’s entire criminal history. This information can be extremely prejudicial, but the law expects the judge to separate information like that from their minds when rendering a verdict in a bench trial. The judge will also know about evidence that has been suppressed because the police or prosecutors violated some rules or the constitution with respect to that evidence. A jury would obviously never know about it, but the judge would. If the police tortured someone until they confessed, a jury would never hear about that confession. The judge would have full knowledge of it, but would be expected to pretend it doesn’t exist when deciding whether the defendant is guilty
Juries acquit more than judges. There has been some scholarly research into this. “Each disagreement was in the same direction: the jury was far more likely to be more lenient than the judge. Thus, in 87% of the disagreements about guilt or innocence, the jury was more lenient than the judge was, and in 79% of the disagreements arising from a hung jury, the jury was more lenient than the judge.”
It is so much easier to continue mass incarceration if the right to a jury is limited as much as possible. Juries are viewed as clogs in a well oiled machine that has locked up people in mass. It is only human to begin to see defendants as mere numbers when tens of thousands pass through the courthouse. It is helpful when a jury with fresh eyes can look at a case, deliberate and reach a fair verdict.
 DC Code § 16–705(b)
 DC Code § 22–1803.
 Amy Farrell, Daniel Givelber, Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt, 100 J. Crim. L. &Criminology 1549 (2010)
Brandon M. Burrell Esq.
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