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Should I Talk If My Lawyer Is Not Present?

Posted on: August 9, 2022

Being questioned by the police can be an intimidating experience. Law enforcement questions people for two reasons. They either believe you are a suspect and want a confession, or they believe you are a witness who can provide information about a crime. Surprisingly, you may not always know which applies until it is too late, and you have said too much.

Even if you have nothing to do with the crime at hand, you should never speak with the police unless your criminal lawyer is present. Ever. It is all too easy for your statements to be taken out of context or manipulated to “prove” your guilt. Even something as simple as saying, “sorry” can be used against you.

Your attorney is there to protect you from self-incrimination and determine if police are following proper protocols for questioning under the law. If you ever find yourself involved in a criminal case, remember to exercise your right to have a criminal lawyer present during questioning.

How to Exercise Your Right to Remain Silent?

If you are questioned as a witness or suspect, you can exercise your right to remain silent until your criminal attorney arrives at any time. This is true even if you have already answered some questions about the crime.

It may not be easy for some individuals to assert their rights in the presence of law enforcement, but it is important. The Fifth Amendment of the United State Constitution protects citizens against self-incrimination. The right to retain an attorney and obtain counsel after charges are filed derives from the Sixth Amendment.

To exercise your right to remain silent during police questioning, firmly and calmly state that you do not want to answer questions until you have met with a lawyer. Avoid being aggressive or confrontational. Remain calm and refrain from engaging in any interrogation without your attorney.

What Are Miranda Rights?

Miranda rights or Miranda warnings were created as a result of the 1966 United States Supreme Court case Miranda v. Arizona. Miranda rights protect the individual’s right to refuse to answer self-incriminating questions. Miranda rights onlyapply after an arrest has been made. Prior to an arrest, the officer can ask questions but must inform the suspect that all questioning is voluntary, and they are free to leave at any time.

While the exact verbiage of Miranda Rights may vary slightly in different jurisdictions, the message is the same:

  • You have the right to remain silent.
  • Anything you say can be used against you.
  • You have the right to an attorney.
  • If you cannot afford an attorney, one will be appointed for you.

If you are being investigated for a crime but have not been arrested or “Mirandized,” simply inform the investigator that you wish to speak to your attorney before answering any questions.

This approach is less suspicious than flatly refusing to answer questions. If you are under arrest and have been read your rights, request an attorney, and follow your counsel’s direction from that point on.

Tactics Law Enforcement Use to Mislead Suspects

Law enforcement officers receive training in different investigation methods. They may try to put a suspect at ease. They tell the suspect they sympathize with their motives to gain their trust and elicit a confession.

Police may imply they have incriminating evidence against a suspect. They will say something like, “What if I told you a witness saw you at the crime scene?” The investigator can suggest that law enforcement will go “easy” on you if you comply. But police do not have the legal right to make these decisions or influence a judge’s sentencing ruling.

If you encounter these common police tactics, it is important to remain resolute and exert your right to remain silent until an attorney is present.

What Is Attorney-Client Privilege?

Attorney-client privilege is a legal principle that allows information shared between the client and their lawyer to remain confidential. This privilege can be asserted during a legal demand for communications, typically during the discovery process. For example, if an attorney is requested or ordered to testify under oath, they can raise the attorney-client privilege and refrain from testifying.

An attorney-client relationship must be present for the attorney-client privilege to exist. This relationship is created when an attorney agrees to provide legal assistance to someone seeking their services. When a criminal lawyer agrees to represent you during the criminal process, the attorney-client relationship is formed.

What you say to your attorney is generally confidential, however there some situations where the attorney-client privilege can be breached. For example, if disclosing certain information is in the best interests of the public, or if it somehow impacts the welfare of a minor child, the attorney can be required to testify.

What If a Third Party is Present When I Speak With My Attorney?

The attorney-client privilege is a vital form of protection for individuals involved in criminal investigations. However, that right is waived when clients speak to their attorneys in the presence of a third-party.

If you are meeting with your lawyer and another person happens to be in the room, that third-party individual can be forced to reveal the details of your conversation—in most cases. Even if your criminal lawyer is present, refrain from discussing your case if another person is present.

There are some exceptions to this rule, however. If the third-party person is there to aid in your defense, the privilege will be upheld. Your legal team may enlist the services of an interpreter, investigator, or other professionals to assist with your case. If they witness a conversation between you and your criminal lawyer, it is possible the attorney-client privilege remains in effect because they are participating in your defense.

When it comes to family and friends, their role as it pertains to attorney-client privilege is a bit more complex. If they are present during your conversations with your attorney, their role in your case is assessed to determine if confidentiality should be upheld. It is possible for a loved one to be called to testify on the stand if they attend a client-attorney meeting.

Your lawyer will advise you on when it is okay to discuss your case and who can be present during your appointments.

What To Do If You Are Brought in For Questioning?

If you are accused of a crime in New Jersey, follow these steps to exert your right to silence and protect against self-incrimination.

  1. Assert Your Right to Remain Silent: During an investigation, if you believe you are suspect or have concerns about any line of questioning, exert your right to remain silent. Tell the investigator you do not want to answer any questions until you have the opportunity to meet with a lawyer.
  2. Avoid Calls Until Your Attorney is Present: Until your criminal lawyer arrives, it is wise to avoid making phone calls or sending texts to anyone. These communications can be used against you and may compromise your case.
  3. Remain Calm and Composed: It is difficult to contain your emotions if you are accused of a crime but do your best to stay calm. Acting overly-emotional may cause police to assume you are hiding something or guilty. When you are not thinking clearly, you are also more likely to say something incriminating.
  4. Hire a Criminal Defense Lawyer: When you are deal with the police, you are likely to receive unsolicited and erroneous legal advice. Never take any guidance from anyone but your criminal lawyer. If you are a defendant in a criminal case and cannot afford an attorney, the court will appoint one to represent you.

Belmar Criminal Lawyers With Ellis Law, P.C. Represent Clients Facing Charges in New Jersey

It is stressful to deal with the police in any capacity for a criminal case. Fortunately, Belmar criminal defense lawyers at Ellis Law, P.C. are here to help.

Call us today at 732-308-0200 or contact the firm online to schedule a free consultation to discuss your situation. From our office in Freehold, we serve clients throughout Asbury Park, Toms River, East Brunswick, Jersey City, Marlboro, Middletown, Long Branch, Neptune, Hudson County, Union County, Monmouth County, Essex County, and Ocean County, New Jersey as well as Brooklyn and New York City.