After an arrest in California, police officers will often transport a suspect to a local jail for booking. Police will try to confirm the arrestee’s identity, search the arrestee (again) as well as any belongings not already searched, An arrestee may be fingerprinted and photographed. Sometimes, police will obtain biological samples, such as breath, blood, urine or even buccal swabs for DNA.
1. During transport to jail and booking you must remain silent.
Officers will sometimes engage in what seems to be idle chat with an arrestee. It is important during this time that you remain silent. Anything you say will probably be used against you. If you are detained in a police vehicle, you should be aware that the interior is probably being recorded—anything you say while in the police vehicle will probably be used against you in court.
2. You do not have a constitutional right to make a phone call from jail.
Arrestees often complain that police did not honor their “right” to make a phone call. Although the California Penal Code apparently requires officers at a jail or lock-up facility to permit you to make a phone call, there is no constitutional right to make a call.
3. If you are allowed to make a call, keep it short and stick to immediate facts necessary to let someone know where you are.
This is critical——virtually all detention facilities monitor and record these telephone calls. During the call, do not discuss the facts of your case with anyone. Don’t describe the circumstances leading up to or surrounding your arrest. Don’t argue your innocence or try to explain how you ended up in jail. The recording of these statements will hurt your case.
Instead, simply state the charges against you (if you know), and where you are being held. Ask for help finding a criminal defense attorney so bail can be arranged. Give your friend or loved one enough information to find you, but don’t discuss anything else.
4. There is no value in arguing your case to the police.
As we have noted previously, during a police encounter, there is no value in arguing your case to the arresting officer. The same is true after your arrest. After you are arrested, the police may spend some time questioning you. The point of this interrogation is to gather information for the prosecutor to use against you, and maybe even get you to confess. The interrogating officer might offer to drop certain charges or promise to go easy on you or get you a better deal if you just tell him what he wants to hear. Don’t believe it. In general, if the police had sufficient evidence against you to go forward with the case and obtain a conviction, they wouldn’t be offering you any deal.
In any case, police do not have any real power to promise you leniency or any deal or drop charges. At best, police can make recommendations, but it will be the prosecutor who decides: (a) whether the
government will offer you a plea bargain; and (b) what the terms of that bargain will be. So, when a police
detective promises you will get a particular deal, you can’t rely on that promise. Accordingly, do not make a deal or
sign a confession before you talk with your attorney. Tell the interrogating officer that you are exercising your right to
remain silent and then remain silent.
5. The more you talk about your case with anyone but your lawyer, the more you put the outcome at risk.
The most common mistake made by criminal defendants is talking about their case. The key to avoiding this mistake is simple in theory, but in reality is often easier said than done: Do not discuss your case with anyone other than your criminal defense attorney.
If you are being held in custody, cellmates may be police plants or snitches willing to turn state’s evidence to get a better deal for
themselves. Conversations on jail telephones are monitored and recorded. If you say something over the jail telephone,
assume the district attorney will hear about it. Plus, jail staff typically read incoming and outgoing inmate mail.
If you are out on bail, your family members and friends will want to know what happened, and you surely will be
tempted to explain why you are not guilty. Resist that temptation. Even seemingly harmless statements you make to
trusted friends and family members can be used against you in ways you did not expect. Simply say, “My attorney says
I cannot talk about the specifics of the case with anyone.”
Finally, “talking” about your case includes posting information about your case on social media. Assume that police and prosecutors will find and read your social media posts or obtain copies from your “friends.” While your case is ongoing, it is a good idea to take a break from social media.Regardless of how unfairly you have been treated, or how well your case is going, keep it to yourself. When you post
on social media, you may inform the prosecution of something about your case they did not previously know, or
inadvertently reveal a violation of your bail or other release conditions. Again, your attorney is the only person with
whom you should discuss your case.
Your criminal defense attorney will do all of the talking necessary to help achieve the outcome you want. The best thing you can do for your case is not to do anything that will make your lawyer’s job harder.