"No person...shall be compelled in any criminal case to be a witness against himself..."
-The Fifth Amendment to the United States Constitution
Dave Chappelle makes a humurous skit out of one of your fundamental rights as an American and as a human being: the right to remain silent and not answer questions. The Founding Fathers, in their eternal genius, devised the Fifth Amendment Right to Remain Silent based on the philosophical belief that statements should be voluntary and never forced. As a Chicago criminal defense attorney I often say that every situation is different, that there are no blanket rules that apply to every situation, and that advice must be tailored to the unique facts of your case. One exception to this is the right to remain silent: it is always better to have the advice of a knowledgeable criminal lawyer before you make statements of any kind to law enforcement. If this is not possible, you should simply remain silent. Unfortunately, I often meet people only after they have waived this important right and have made statements to police either because of (a) police coercion, (b) because they think that if they are innocent the legal system will automatically treat them fairly, or (c) because they simply do not know that they have a right to refuse questioning and consult a lawyer first.
Why is making statements to law enforcement usually such a bad idea? Consider the following hypothetical: It's a Friday night and Alpha, Bravo, Charlie, and Delta Defendant are taking a road trip down I-290 headed into Chicago. Alpha is driving and smoking his glass bowl full of marijuana which he passes to his fellow passengers. (Driving with drugs in your car or, "Riding Dirty," is a dangerous and careless way to greatly increase your chances of not only death or injury, but also, a cocaine, marijuana, or possession of a controlled substance arrest that will cost you time, money, and possibly even your freedom. Please read my blog post "How to Avoid Being Arrested in Illinois with Drugs in Your Car" advising against it). Minutes later, Chicago traffic patrol pulls Alpha over for speeding and expired registration. As the Chicago policeman obtains Alpha's driver's license, he notices an overpowering smell of weed, arrests the car occupants, and questions them individually.
At first, everyone refuses to make a statement as to who the bowl belongs to and who was smoking pot. At this point, Illinois police can charge all four of the occupants with possession of marijuana and possession of paraphanalia, or, attempt to charge Alpha with constructive possession of the pot and paraphernalia because it was found in his car, in which case Bravo, Charlie, and Delta Defendant go home. Suppose, however, that Delta Defendant makes a statement saying "The bowl and pot are mine." Police now have evidence in the form of Delta Defendant's confession connecting him to the criminal act of marijuana and paraphanalia possession. Had he asserted his Constitutional Right to Remain Silent, he may have been sent home, or at the very least, the case against Delta Defendant of possessing drugs would have been significantly weaker than now, where law enforcement has his oral statements connecting him to the crime of marijuana possession under 720 ILCS 550/4 and possession of drug paraphernalia under 720 ILCS 600/3.5.
This is the position that the overwhelming number of people who seek my assistance as a Chicago criminal lawyer find themselves in. Most people give up their power in an arrest scenario by confessing or making statements either because of police intimidation or because they do not know they have a right to refuse to answer questions by law enforcement. What Delta Defendant should have done is asked to speak to his lawyer first or, if he could not reach his lawyer, insist on his Constitutional Right to Remain Silent. (Please read my excerpt "What should I do if I am arrested or asked questions by the police?" or contact us for a free wallet size "Rights Card" for an easy to use and remember approach to asserting your rights when under arrest or threat of arrest).
But, even if the police claim that you have made statements or have confessed, all is not lost. If your alleged statement was the result of either (a) coercion or (b) "custodial interrogation" and you were not first read your "Miranda" rights, you can turn to the protections of the Illinois and Federal Constitution to keep the alleged confession out of evidence. If your oral statement is the only or strongest evidence against you, this means that the case against you may either fall apart and be dismissed or, will be more easily defended at trial. Whether and how to suppress any alleged statements in court with a motion to suppress is a fact-specific analysis that is best done in person on a case-by-case and face-to-face basis.
Shepherd Law Office has been using the Illinois and U.S. Constitution to protect citizen's "Miranda" rights since 2005 serving those areas in and around Chicago, Markham, Streeterville, Bridgeview, and Kane County.
