Lessons from Making a Murderer

It seems that everyone’s talking about Making a Murderer, the hit Netflix documentary.  And, as a lawyer, it seems that everyone wants to talk to me about it.  My first response is that the show is a walking advertisement for my number one rule: Don’t talk to the police without a lawyer present.  But beyond this simple advice, there’s a lot more you should keep in mind in the event you’re ever arrested.  We may hope that it will never happen, but it’s always best to prepare for the worst.

Whether actually guilty or not, everyone has certain rights when arrested. It’s the government’s responsibility to prove its case against you.  You don’t have to help them in their work.  Knowing and exercising your rights is one of the most important things you can do ensure everyone plays by the rules when you are arrested

First, a cautionary word - don’t resist and be polite. 

Next, as I am sure everyone has seen on TV or in the movies, the United States Supreme Court has held that we have four basic rights when questioned by the police while in custody. First, you have the right to not answer any questions. Second, you have the right to be advised that if you do speak, anything you say can be used against you in court. Third, if you do begin answering questions you have the right to stop at any time and all questioning must cease. Fourth, you have the right to a lawyer and to have your lawyer present during any questioning. If you can’t afford a lawyer, one will be appointed for you by the Court before questioning can begin. These are known as the “Miranda Warnings.”

It’s easy to be intimidated if arrested or stopped by the police. Don’t be. Stay calm, take a deep breath and remember that you’ve been arrested for a reason – the police think you are guilty. Exercise the rights given you even before you are read your rights. For example, even if you think you are going to say something helpful, it may come back to haunt you.  And, as you may have seen in Making a Murderer, it’s OK for the police to mislead you and provide you with fake facts in an attempt to get you to say something incriminating.  Again – all the more reason to remain silent and to demand a lawyer.

What actually happens once you are arrested? First, you will be taken to jail. The police are required to inform you, generally, as to why you have been arrested. After being booked (think of the proverbial mug shot and fingerprints), you are entitled to the use of a phone to call a family member or your lawyer if s/he has not already been contacted. The police can, generally, take samples of your hair and blood. They can require you to provide handwriting samples or to speak phrases associated with the crime with which you are being charged. You can also be required to participate in a lineup. If you haven’t yet contacted your lawyer, demand that s/he be present for such events. Your counsel’s participation may result in a more favorable lineup.

In some instances, a lawyer may be able to arrange for bail. Without a lawyer’s assistance, it’s likely that you will have to wait for the Court’s next setting to request bail. In Sangamon County that means if you are arrested Friday night you might have to wait until mid-day Sunday before you can ask that bail be set.

If you are arrested, the police are entitled to conduct limited searches without a warrant. They can search the immediate area of the arrest. During that search, they can seize any contraband, stolen property or other evidence of the crime that is in “plain view” from the areas where the police have a right to be. If arrested while driving a car, the officers can perform a search of the car for the purpose of discovering weapons that might be used against them. Of course, if any other evidence or contraband is discovered during this so-called “search incident to arrest”, it can be used against you.

If you’ve been arrested pursuant to a warrant, you are entitled to see that warrant.  Obviously, check the warrant to see if it’s a case of mistaken identity. Of course, not all arrests involve a warrant. For example, if you commit a crime in the presence of the police, or if they have credible evidence that a crime has been committed and there’s a risk of flight, an arrest would be proper.

Not all contacts with the police will necessarily lead to arrest. The police are entitled to temporarily detain you if there is a “reasonable suspicion” that you have been involved in criminal activity. In that event, you may be asked to identify yourself and to explain your presence at a particular time. During this temporary detention the police can conduct a limited “pat down” for the purpose of detecting weapons if they have reasonable grounds to believe that you are armed or may be dangerous. Significantly, you aren’t entitled to the Miranda Warnings during such temporary detentions. Nonetheless, you still have all of those rights – including the right to remain silent. 

In summary, if arrested, your safest course is to tell the police only the following:

    5.    I want my lawyer present during any identification process.

There may be instances where it’s in your best interests to speak to the police or to act contrary to some of these suggestions. However, it’s best to leave that decision to a qualified attorney who can review all of the facts. Ignore this advice, and you may find yourself starring in your own documentary on Netflix.