No matter where a suspect is detained by the police–whether on the side of the street, in a police car or at the police station–he or she retains certain constitutional rights: the Fourth Amendment right to be free from an unreasonable search and seizure; the Fifth Amendment right to remain silent; and the Sixth Amendment right to have a lawyer present during questioning. (Generally, a suspect is officially in police custody when he or she experiences a significant loss of liberty, i.e., the freedom to leave.)
The1966 case Miranda v. Arizona was the impetus for the now familiar “Miranda warning,” which requires the police to inform an arrested suspect of his or her constitutional rights prior to any police interrogation. Generally speaking, if a suspect is questioned without the Miranda warning, nothing the suspect says can be used as evidence against the suspect. In addition, any evidence uncovered will not be admissible.
The following is a typical Miranda warning:
- You have the right to remain silent.
- Anything you do say can be used against you in a court of law.
- You have the right to have a lawyer, and to have that lawyer present during questioning.
- If you cannot afford a lawyer, a lawyer will be appointed for you.
- If you choose to speak with the police, you have the right to stop the interview at any time.
Remember, though: even if an officer fails to give the Miranda rights, the arrest remains valid. The difference is that, generally, anything the arrestee says in response to police questioning will not be admissible at trial.
If the police question a suspect prior to detention, or if the suspect volunteers information to the police, those statements will almost certainly be usable in trial.
Use of force during arrest
The police are permitted to use the amount of force reasonably necessary to make an arrest.
In general, police officers are not authorized to use deadly force, except in specific circumstances: the suspect has threatened the police officer; the suspect is in flight and suspected of committing a violent felony; the suspect poses a threat to a third party.
As a matter of principle, individuals are allowed take self-defense measures to protect themselves from a police officer’s use of excessive force. In actuality, however, it is highly unlikely that the police will be found responsible for any escalation that ensues.
Two Los Angeles police officers were, however, convicted and later sentenced to 30 months in prison for the 1991 beating of Rodney King. The officers were convicted for violating King’s federal civil rights by violently beating him when he resisted arrest after being detained for speeding.
Right to an attorney
The Sixth Amendment to the Constitution provides that the accused has the right to assistance of counsel in all criminal prosecutions.
If a defendant cannot afford an attorney, one will be appointed by the court. In 1979, the Supreme Court determined that only those defendants facing the possibility of going to prison for more than six months and who could not afford an attorney were entitled to an attorney at the government’s expense. However, courts will usually appoint counsel for an indigent defendant any time the defendant faces a prison sentence. In 1975 the Supreme Court decided in the case Faretta v. California that a defendant who is competent enough to meaningfully participate in the trial and understand the court proceedings must be allowed to represent him or herself in court.