Do Not Speak With Law Enforcement Without an Attorney, Ever.
When law enforcement contacts you, it is vitally important you contact an attorney immediately. You have likely heard of the Miranda warning, which includes the right to remain silent. The legal authority to remain silent is found within the Fifth Amendment of the Constitution, which provides “No person… shall be compelled in any criminal case to be a witness against himself[.]” Remaining silent carries through to every aspect of the criminal justice system.
In Montana, Miranda warnings must be given when a person is subject to a custodial interrogation by law enforcement. The question of whether a person is subject to a custodial interrogation is extremely fact intensive. Generally, if you are not free to walk away from law enforcement, you are in custody whether you have been told “you are under arrest.” Nonetheless, you should not rely on the factual circumstance of your contact with law enforcement, simply remain silent, because you can be sure anything you say can and will be used against you.
Law enforcement is trained to use many tactics to solicit information. They are trained to push into the grey area of the legal requirements. You will not know if you are being questioned as a suspect or if they are being truthful. Often times, they make it seem like they are trying to help you. Contrary to law enforcement statements, whatever help they have “promised” you, will still be available after talking with an attorney.
I defended one defendant in a case involving three defendants being investigated for serious felonious conduct. Two defendants “cooperated” with law enforcement and provided as much detail as they could in order to, in the words of law enforcement, “help” themselves. Both were charged with serious felonies. The third defendant contacted an attorney who advised law enforcement that he would cooperate through his attorney only. Despite all three defendants being exonerated, only the first two were forced to answer the charges and subject themselves to rigorous prosecution.
Law enforcement does not initiate contact without a reason, a hunch, or a motive. Their contact with you should be taken very seriously. You have rights and you have time to explore those rights. Should law enforcement call you, arrest you, or ask you for information, you should exercise your right to remain silent, remain consistent and calm, request an attorney, and call our office as soon as possible.