14 Feb '17

Your Super Power

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Posted by KurtWeb
23 comments

We have rights in this country, and like superpowers, rights don’t do much good unless you know they exist and understand how to use them.

Comic book fans have long been familiar with the ethic Peter Parker (Spider-Man) was given by his Uncle Ben: “With great power comes great responsibility”. As American citizens, we reside in a constitutional republic. This gives us great powers…. our civil rights.  It is our responsibility and duty to know how to use them. I am also holding out for web shooters.

In my 29 years of practicing criminal law, I have seen more than a few cases where there was a misunderstanding about what a suspect said, or where a search could have been refused if the suspect had known better. In most of those cases, the persons either didn’t know they could remain silent and/or refuse consent to search. Or, they felt too intimidated to assert rights they weren’t sure about.

A right must be asserted in a clear and straightforward manner to be properly invoked.

  • “Do you think I might need a lawyer?”

Nope…that won’t do it.

  • “I want to speak to a lawyer now and will not answer any questions until I do.”

Yes…that’s the ticket.

The good cops will respect you for this invocation.  The bad ones won’t. They will tell you it will go badly for you unless you talk to them. They will threaten you with dire consequences if you get a lawyer. They will imply that their life-long ambition to help you in every possible way will be foiled if you lawyer up. It is a load of crap. It is such a big a load of crap the police should have to file an Environmental Impact Statement before dumping it on you.

Once you assert your right to counsel and to remain silent, ALL questioning about the alleged crime has to stop. The police are not supposed to say anything to induce you to start talking again. So sayeth the US Supreme Court in Rhode Island v. Innis, 446 US 291 (1980). The cops have known this rule for 37 years. They learned it in the academy. Somewhere between then and when they met you, the bad ones unlearned it. If you meet some of those, you will need to hold tightly to your rights. Like bankers touch gold. Like ladies hold babies.

You have a right to counsel under the US Constitution, 6th & 14 Amendments. If you are in New York State, the NY Constitution, Art. I, § 6, provides an even stronger right to counsel. This right automatically attaches at certain critical stages of a proceeding such as the filing of a charge, the issuance of an arrest warrant, arraignment, certain line-ups, custodial interrogation (a suspect in custody——not free to leave the police——and being questioned), etc.

But like any super power, this right only works if you invoke it properly!

Repeat after me:

  • “I want to talk to my lawyer.”
  • “No…I don’t give consent for you to search me, my car, my home….”

Better yet, it isn’t cheating to have a prompt. The cops use cards to read suspects their Miranda rights.  Why not have a card to read to them?  It will prove very helpful in saying the right thing when under the pressure inherent in contact with the police, . It will also be a record of what you stated.

Something that says:

“Officer – By presenting this card, I respectfully invoke my rights to counsel, to remain silent, and to be free from unreasonable search & seizure. You do NOT have my consent to search my auto, my person, or my home. My lawyer is Kurt Mausert. I wish to contact him immediately.”

Where can you get a great card like this?  Funny you should ask.  I have just the thing.  This magic language is on the back of my business card.

If you would like to have my card to carry and to present to the police, contact my office and we will send you two. One for you, and one to give to the police. If the police ignore your invocation of rights, any statement they take from you, or evidence they obtain as a result of an illegal search. can be kept out of court. Invoking your rights can be your shield.

Some words you may hear from the police once you assert your rights:

  • “If you are innocent and have nothing to hide, why are you asking for a lawyer?”
  • “Why can’t we search you?”

An answer I am fond of:

  • “Because it is my duty as an American to honor and protect my rights and the Constitution. You are sworn to uphold it, so please respect my rights.”

Our ancestors fought and died for the rights I’ve talked about here. Invoking your rights is not a sign of guilt. It is a sign you respect our country, your role as a citizen, and your liberties. It is the American thing to do.

I am also available 24/7 to take urgent calls. My answering service will reach out to me on nights and weekends if they receive a call from a person who is in danger of being arrested or who is already in custody. Don’t be shy. Use your super power!

 

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