So You’re Going to Be Arrested
Being charged with a crime is a stressful experience with enormous consequences. And the beginning of that stress is the arrest, when an officer either tells you charges will be placed in the mail, or worse, locks you up for the night. In either case you’ve been arrested and in either case your response will go a long way in achieving a positive outcome. Most people mess this part up, which wreaks havoc for the criminal case down the road. Here is what you should do before and after you’ve been arrested.
An arrest is stressful. Stay focused
As I’ve written many times before, when you are interacting with police you are incredibly vulnerable. In any interaction with the police, your goal isn’t to avoid arrest (often impossible) or avoid spending the night in jail (more on that below). Your goal is always to avoid a criminal conviction.
This is why I always recommend you 1) stop talking, and 2) ask for an attorney. This is easy to read on a website but tough to remember when you’re caught up in the flashing lights, with an officer bearing down on you. An officer makes hundreds of arrests every year and they’re very good at it. They deal with plenty of people who have never been investigated for a crime before and are clearly stressed, and they elicit information based on that stress.
Don’t be fooled and don’t try to appease the big bad authority figure. Your first step is to stay respectfully silent and ask for your attorney. Once you say those magic words, “I would like to speak with an attorney,” they know they’re dealing with someone with above-average sophistication. That’s a good thing, because then they know if they start cutting corners or fudging the rules they will be be held to task.
Can you avoid a night in jail?
Sometimes you can, but before we get into that let’s talk about being processed into jail itself.
Let’s say you were arrested in Seattle on suspicion of DUI. And while cops have some discretion, let’s say they decide they want to book you into jail for that DUI. What happens next?
First they’ll transport you to the facility. This transportation may be recorded, so don’t start making a taxicab confession. Remain silent.
You’ll be taken to a facility where you’ll be fingerprinted and photographed. You’ll be searched, your possessions inventoried, and you’ll be given slippers and all-red jail clothes. They’re not particularly flattering, and the process itself is fairly humiliating.
Depending on time of day and other such factors, you may be fed that night. You’ll be taken to a cell, often but not always private, to spend the night. Safety? Well people have been known to get MRSA in the jail but as far as any kind of violence from guards or other inmates, I wouldn’t worry about that. It’s county jail, not prison, and the most common offenses are low level charges like DUI. Feel free to be nervous or angry or scared, just know most everyone else is feeling the same way. Frankly the two most common complaints of people in jail is the low quality of food and boredom.
Depending on the day you’re arrested, you may be seen the next morning or in a couple days. In any event, within 72 hours you’ll go in front of a judge in a process known as arraignment which I’ve discussed in more detail previously. You’ll have a public defender at the arraignment, or if you wish, you can call an attorney to come represent you. Some attorneys suggest working with a public defender at arraignment and retaining their office afterwards, but for the few private counsel who go to the jails for arraignment, their clients seem to end up in a better position. I will make that trip.
Presuming you were released on your promise to reappear, or you can post bail, you get to go back home. You may have some conditions of release. In DUI cases you’re commonly ordered to abstain from alcohol and non-prescribed drugs. In domestic violence cases, you’re commonly ordered to have no contact with the alleged victim. In shoplift cases you’re commonly ordered to stay away from the business. And so on.
Then you get processed out, which takes a few hours. You get your stuff back, you give them back their clothes, and you get on with your life, with a fun story to tell your grandchildren some day. But the story’s not over yet because there may still be a pesky criminal charge hanging over your head.
That’s the possible jail visit upon arrest. As I said it is somewhat discretionary to the officer, depending on the offense. A shoplift case is almost never jail-worthy, whereas a domestic violence allegation almost always is. DUI is kind of the middle ground. That decision depends on the severity of the driving (e.g. whether there was an accident), and your compliance with the officer. That last one is where people get themselves into trouble.
No officer in their right mind will ever say they’ll take you to jail if you ask for a lawyer. If any officer did say that, a judge would tear their head off. But what a cop can and does say is that if you cooperate with them, specifically answering their questions and doing their tests, they won’t put you in jail that night.
This is a trap. A night in jail is unpleasant but temporary. Talking to the cops and doing tests on the side of the road makes getting a conviction much, much more likely, and that conviction will follow you for the rest of your life. Do not assist the police in convicting you of a crime.
However, just because you don’t answer their questions doesn’t mean you should be rude. Nothing’s stopping you from detailing the farm animals in an officer’s genetic lineage, but it won’t help you either. A polite refusal goes much farther than an angry one. And there’s two good reasons for this.
The first is that officer discretion again. Some cops, not all but some, will still cut you a break if you’re respectful while you decline their questions. Depending on the case, some may let you go on the spot. Cops don’t get their pay dinged if an arrest is later tossed by the court, so if it’s a close case your attitude could tip the scales. Sure it’s paperwork but if you really egg them on they’ll probably find the time.
Secondly, if you do get arrested your comments will be in the police report. They may or may not be read to a jury, which would be bad. But in the short term, they may trigger a judge to think you’ll “interfere with the administration of justice” and set a higher bail. I’ve lost count of how many hours I’ve spent trying to convince judges that a client’s offensive statements should not result in higher bail. Sometimes it works and sometimes it doesn’t. Not a risk worth taking.
Remember making the cop happy is not the end game. If the cop gets steamed because you won’t answer his “perfectly reasonably questions, and why won’t you answer my questions if you have nothing to hide?” well that’s just how it is. Your goal is always to avoid a conviction. Not giving statements and not doing tests is a big step to accomplishing exactly that.
Police reports and you
As I said, police make hundreds of reports a year. They are not able to keep track of the circumstances of every arrest they make. So they write reports. The report includes narratives of the events, the major players, and sometimes exhibits like photographs. Those reports, and all supplementary ones, are kept in a police file. A copy of the report is sent to the local prosecutors so they can determine whether to file charges. And if a defense attorney is retained, they get one too.
These reports are the biggest hurdle a defendant has to face. They’re vastly more damaging than witness statements, or even video. There are a few reasons for this.
First, police are trained right from the academy to write reports that paint a defendant in the worst possible light. They do that because the reports are also used to determine whether probable cause existed for an arrest in the first place. So reports are written to maximize the opportunity to find PC, and thus make the initial arrest stick.
It’s pretty rare for cops to flat-out lie on reports, but it has happened. Worse are the omissions, like a cop pushing a defendant more than they needed to be, or a victim admitting they started the fight, or a host of other things. Basic cognitive dissonance will tell you that once an officer has made a decision to arrest, things that would mitigate that decision receive less attention.
This has a recursive effect because as I said, police can’t remember everything. Once trial rolls around, sometimes months or years later, they only have the reports to rely on for their memory. As far as their testimony is concerned, if it’s not in the report it didn’t happen. The report itself won’t go back to the jury, but what’s the difference if the cop just gets to essentially read off the page? Police reports are always written that the defendant is guilty as sin, and it’s an uphill battle to combat it.
Luckily this is a situation where you can fire with fire. If you are arrested, get a pen and paper and write down everything. Write down where you were before the incident, write down what time things happened, write down what happened after, write down what everyone said, etc. Don’t stop recording what happened until you see an attorney for the first time. Sign and date your report and write CONFIDENTIAL – FOR ATTORNEY USE ONLY at the top.
I do ok for myself in court, but good lord would I win more if everyone wrote their own report. Memories do fade, even if you’re only arrested once in your life.
The reason the cops have so much credibility on the stand is partly because they’re cops, but partly because they go up and testify with such unerring accuracy. They review the hell out of their reports before any hearing or trial. And if they forget something, they get to review their report on the stand to recall the missing fact. It’s a serious advantage.
If there’s a discrepancy in the facts, and if there’s a trial there often is, then the natural inclination is to go the person who wrote it down. If both people show up with contemporaneous written statements, than it becomes a fairer fight. That’s a good thing. And court rules allow any witness, not just the police, to refer to their written report if their memory wanes. Again, a sizable advantage to those who take it.
An interesting question is whether you actually get pen and paper in jail. From what I’ve been able to tell, they will sometimes give you pencil and paper if you ask…but hardly anyone ever does. If it ever comes up, make sure to ask. If they say no and it looks like you’ll be stuck in there for a while, try to get an attorney over there as soon as possible to transcribe your notes.
Anyone who says being arrested is fun has been arrested too many times, and are not appropriate for giving advice. Arrest is not fun. But, it doesn’t mean it’s game over either. If you stay focused, get an attorney, and do your part, an arrest may merely be the first step to hearing those magic words: “Not Guilty.”