Arrests and Your Rights in Criminal Proceedings

Arrests and Your Rights in Criminal Proceedings

A set of hands in handcuffs

If you are not allowed to leave, then you are under arrest. If you don’t know if you are under arrest, you should politely ask the officer: “Am I under arrest?” If you have been arrested, you can ask the officer what you have been arrested for.

If a police officer has probable cause to believe that you have just committed a crime, the officer can arrest you on the spot. Probable cause requires only a good reason to think that you have been doing something that is a crime.  Usually, to make a legal arrest, the officer must be able to show that at least one of the following is true:

  • The officer witnessed you commit or try to commit a crime;
  • The officer has a court order to arrest you;
  • The officer has probable cause to believe that you have violated conditions of release or probation;
  • You have escaped from lawful custody;
  • You were lawfully detained by a private citizen;
  • You are a runaway or a minor who is abused, abandoned, or in immediate danger.

If the police officer suspects you of committing a crime, a police officer may write up a complaint and bring it to a judge.  The judge will decide if there is probable cause to believe that the crime has been committed and that you are the one who committed it.  The judge will issue either a summons or an arrest warrant.  If the court issues a summons, law enforcement officers will not take you into custody, but you must appear in court on the date and at the time the summons says.  If you don’t, the court will issue an arrest warrant for you.

If the court issues an arrest warrant, police officers will attempt to find you, take you into custody, and book you into jail.  It is important not to try to run or resist the officers when they arrest you.  If you do, you could be charged with additional crimes like resisting arrest or assaulting a police officer.

If the police have been investigating you for a crime, especially if the crime is a serious one called a felony, the prosecutor could decide to present the evidence against you to a grand jury and obtain an indictment.  An indictment is a determination by a grand jury that there is enough evidence against you for the case to continue.  A grand jury is a group of community members who look at the evidence against a suspect and decide if there is probable cause to believe that person committed the crime.  If the grand jury decides to indict you, the court will then issue either a summons or an arrest warrant.

If you are arrested, you will be taken to jail and will go through the booking process.  Your belongings will be taken from you for safekeeping.  You will be allowed to contact an attorney and a friend or family member.  Again, the officers may ask to interview you while you are in jail.  You do not have to answer their questions.  If you clearly request an attorney, the officers must stop questioning you.

Criminal proceedings, including juvenile delinquency proceedings for a person under 18, generally begin with an arrest. Read the links in this section on juvenile justice proceedings or adult criminal proceedings for more information about what will happen after your arrest.

A person arrested for a crime has legal rights that are intended to make sure the criminal process is fair.  If officers want to ask you questions after you are arrested, they must tell you about your rights by giving you information that is called the Miranda warning. The exact words of the Miranda warning may differ, but the arresting officer must tell you that

  • you have the right to remain silent;
  • anything you say can be used against you in court;
  • you have the right to talk to a lawyer (also called an attorney) and have the lawyer with you to help you when police question you; and
  • if you cannot afford a lawyer, the court will appoint one for you at public expense.

These rights are explained more completely below.  You should listen carefully and do your best to remember these rights.  Even if the officers forget to read these rights to you, in some cases, they could still use anything you say against you in court.

You have the right to make two phone calls –one to your lawyer and one to a friend or family member.

The right to remain silent means that you do not have to answer the officer’s questions or talk to the officer at all.  If you do decide to answer the officer’s questions, you are waiving your right to remain silent, and anything you say could be used as evidence against you in a trial in court.  This is true even if you have already said that you did not want to answer questions.  By voluntarily starting to talk, you are waiving your right to remain silent.  But even if you decide at first to talk to the arresting officer, you can change your mind.  You can stop talking or answering questions at any time.

The officer may ask you if you wish to waive your rights.  That is, do you voluntarily choose to give up your rights?  You should talk to a lawyer, or to your parents or guardian, before you write anything, sign anything, or waive any of your rights.

The police cannot use your silence against you.  This means that they cannot argue in court that you are guilty because you refused to talk to them or answer questions.

If the police ask you questions, you have the right to talk to a lawyer.  You can tell the police you want to have a lawyer and a parent or guardian with you when you answer questions.  You have the right to a court-appointed lawyer if you or your family cannot afford a lawyer.  You will not have to pay a court-appointed lawyer, but you will have to show the court that you really do not have the money to pay a lawyer.

Asking for a lawyer has an important effect even though the lawyer will probably not meet with you immediately. If you ask for a lawyer, the police must stop talking to you entirely. If you just remain silent, but don’t ask for a lawyer, the police can keep talking to you and asking you questions.

The fact that you asked for a lawyer cannot be used against you in court.  Whether you are guilty or innocent, a lawyer can do many things to help you.  A lawyer can steer you through the criminal process and help protect your rights.  A lawyer is an expert in the law and the processes that you will go through. The lawyer may think of things that you did not consider.  Even if you think you didn’t do anything wrong, the process can be confusing and frightening, and it is always a good idea to have someone who understands the processes on your side.

It is your choice whether to follow your parents’ advice, but you should think carefully before giving up any of your rights.  Your parents may not understand the situation, or you may not agree on what is best for you. You should ask your lawyer whether it is a good idea to answer police questions.  If your parents won’t get a lawyer for you, you can ask the court to appoint one for free.  Even if your parents hire or pay for your lawyer, they cannot tell your lawyer what to do.  Your lawyer represents your interests only.

No matter what has happened, don’t act angry or rude.  Do not resist arrest by yelling, cursing, refusing to follow orders, or becoming violent with the officer.  Resisting arrest is a separate offense and you could get in trouble for it, even if you didn’t do what the arresting officer thinks you did.  Officers are allowed to use whatever force is necessary to arrest you.  If you resist, you could be injured or even killed.  If you think your arrest was illegal, you should tell your lawyer.  Your lawyer will advise you about objecting to the arrest later on in court.  If you think there was a simple misunderstanding, you can calmly try to explain yourself to the officer.  But remember that it may be a good idea to remain silent, since anything you say can be used against you in court.