"Lawyers never want their clients to talk to the police. My questions
are about taking the 5th and refusing to speak. If the police come to
my door or pull me over can I immediately refuse to speak without a
lawyer present or do I have to be charged with something first and
wait for a Miranda warning? How does one refuse to speak?
try to make me talk even after I have refused? If I refuse to speak
with police how do I get a lawyer to my side without talking to
anyone? Finally, can you ever think of a time when an accused person
helped their case by speaking with the police? Thanks in advance."
This is probably one of most publicly misunderstood aspects of police work. I’m going to give you the technical answer and then analyze it a little bit and tell you what usually happens.
In Vermont, you do not have to talk to the police. However, you do have to obey the police like if they tell you to stop or move somewhere. There are also some occasions where you must provide specific information to the police. Here are a few examples.
If you are pulled over you must give the police your license, registration, and proof of insurance. If you do not have it with you then you must verbally provide the information. If you do not, you may be subject to a longer detention and potentially an arrest. Similarly, if you are involved in a traffic collision, you must provide certain information to the other driver or to the police. If the other driver is not around (parked car or they are taken to the hospital) then you are going to be required to talk to the police and provide that information. If you do not, you may be arrested.
Notwithstanding the above, you can always refuse to talk to the police. You can communicate this by simply not talking or by stating “I don’t want to talk to the police and am not going to talk to you.” You can do this when they contact you in a non-custodial situation like a car stop or a visit to your house or in a custodial one like when you are arrested.
Reading a person their Miranda rights is not required as often as shows like “Law and Order” and “NYPD Blue” would have you believe. It is only required if you are in custody and the police are going to ask you questions. An arrest with no questions means no Miranda. Questions from the police but no arrest, like a car stop, means no Miranda.
Saying you want an attorney is very different than saying you do not want to talk to the police. If you say you do not want to talk, the police can ask you again to talk to them at a later time, as long as they are not coercive in a manner that would overcome your will to say no. If you invoke your right to an attorney then the police can not talk to you again regarding that specific matter unless you initiate the contact with them or unless your lawyer is there.
Here is an interesting fact most folks do not know. There is actually no constitutional right to remain silent or to have an attorney when talking to the police. You can read the whole constitution – it’s not there. The fourth and fifth amendments do grant the right to not speak in court and have an attorney in court but they say nothing about contact with the police.
The rights that you have related to conversations with the police are procedural rights that were created by the US Supreme Court in some of their decisions. The court felt that these rights were necessary in order to insure fair treatment of the public by the police and to prevent coercive interrogations by the police. They used the right against self-incrimination and the right to have an attorney in court as the basis for this since most police actions end up in a court. One of those court cases was Miranda vs Arizona, hence the often cited “Miranda rights.”
If you have a question for the Brattleboro Police Department’s Ask-A-Cop, please email it to firstname.lastname@example.org with “Ask-A-Cop” in the subject line.