The prosecution likes to say that they “do justice” while the defense likes to say that they “protect liberties.” The truth is that both sides “do justice.” There’s a saying in the law that “the Queen never loses.” The reasoning is that when a guilty person is convicted, society has been protected and justice has been served, and when an innocent person is acquitted, the system has worked and an injustice has not occurred. In both instances, the Queen has won. Having said that, it must nevertheless be remembered that the criminal justice system is an adversarial proceeding and that both sides are attempting to achieve their own objectives. Although neither side is supposed to obstruct the performance of the other, there is no requirement that either side capitulate. Both sides are supposed to represent their positions zealously and to the best of their abilities. Therefore, a few points should be kept in mind whenever an individual finds themselves involved in the criminal justice system.
1. Miranda Warnings — Too often people identified as suspects attempt to talk their way out of the situation. They try to explain and in the process they just get themselves in deeper. The reality is that the police are usually more adept at investigatory questioning than the suspect is at answering investigatory questions. As a consequence, suspects end up saying more than they should and in the process weakening their cases while at the same time strengthening the cases against them. There’s precedent that says that the police need not recite the Miranda warnings verbatim and in fact I had a case where the police officer said, “anything you say can and will be used FOR AND/OR AGAINST YOU.” Naturally, the person, thinking she could talk her way out of the situation, talked — and in the process gave the police a 2 1/2 hour statement that constituted the bulk of their case against her. At the suppression hearing the Court commented on the originality of my argument but nevertheless upheld the validity of her confession.
There’s nothing wrong with giving the police background information, but once the questioning starts focusing on your specific involvement, stop talking. Don’t make a statement and insist on your right to talk with an attorney. The police are professionals, so get your own professional involved.
2. Search — The Constitutions of both the United States and the State of Ohio recognize your right to be protected from unreasonable searches and seizures. Avail yourself of that right. Admittedly, there are circumstances under which the police are not required to obtain a warrant and inasmuch as the average person is not familiar with the intricacies involved, it is never wise to obstruct/hinder the police. So, don’t obstruct/hinder the police in the performance of their official duties. However, insist that the police obtain a warrant and if you find yourself in one of those situations where the police claim that a warrant is not required, let them search, don’t obstruct/hinder their efforts, just don’t consent. Inasmuch as consent has been inferred from behavior, it would be best if you did nothing through actions or words that could be interpreted as consenting to the search. Consent cures all defects and if there were any problems with the search, the procedures involved, the warrant itself or anything else related to the search, your consent just made those problems go away. Remember, don’t obstruct/hinder, just don’t consent.
I wrote this page not as an attempt to offer an all-inclusive answer to all questions and situations that may arise, but rather out of a desire to raise awareness and hopefully make some points that will come to mind should the need arise. If you have questions or want more in-depth information, consult an attorney before implementing any of these suggestions.
David V. Gedrock serves clients throughout Medina, Wayne, Summit, Cuyahoga and Lorain Counties.