BOOK EXCERPT
            This book is available at your local bookstore.

           THE COURT TV CRADLE-TO-GRAVE LEGAL SURVIVAL GUIDE
         by the Editors of *Court TV* & *The American Lawyer*

Copyright 1995 by American Lawyer Media, L.P., & Little, Brown and Co.

                         All Rights Reserved.
                          ISBN: 0-316-03663-3

                          Warner Books, Inc.
                      1271 Avenue of the Americas
                          New York, NY 10020

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                           GETTING ARRESTED

                           Your Basic Rights


Max and Beatrice were reminiscing about old times. "D'ya remember the
time I got busted by an undercover cop at that Grateful Dead concert?
It seems like a different lifetime," said Max, musing over lost youth.

It had been an outdoor concert on a beautiful Sunday afternoon years
before, with the mellow crowd swaying in the park as one to Jerry
Garcia's voice. Max was so high he hadn't suspected a thing. He lit up
another joint, and the next thing he knew, a big man put a big hand on
his shoulder and said, "Police. Follow me."


What rights do people have when they're accused of a crime?

Several amendments to the U.S. Constitution protect your rights within
our country if you are arrested and tried on a criminal charge. These
amendments were developed in reaction to abuses by the British
government before and during the American Revolution, and the people
who wrote our state and federal constitutions included many procedural
safeguards to ensure the fairness of criminal prosecutions.

In the U.S. Constitution, the safeguards are part of the amendments
that make up the Bill of Rights, and they include:

 --     The Fourth Amendment. It protects you against unwarranted
        search and seizure of your property or person, and from being
        arrested without probable cause (for a fuller explanation, see
        page 196).

 --     The Fifth Amendment. It gives you the right to remain silent
        during questioning, protecting you against self-incrimination.
        It forbids double jeopardy (being tried twice for the same
        offense; see 196), and it requires the government to provide
        due process -- to obey its own laws and apply them fairly to
        all people within our nation.

 --     The Sixth Amendment. It gives the accused in criminal cases
        the right to counsel and to a speedy trial and the right to
        call witnesses and cross-examine the government's witnesses.

 --     The Eighth Amendment. It protects citizens against "cruel and
        unusual" punishment.

 --     The Fourteenth Amendment. It gives citizens the right to equal
        protection under the law, meaning that the government may not
        discriminate against any citizen in applying laws.

Defining and fine-tuning the meaning of these amendments has occupied
the U.S. Supreme Court since its inception.


How are criminal cases different from civil ones?

There are a few major differences. A criminal case is always brought
by the local, state, or federal government, represented by the
prosecutor (sometimes known as the district attorney, state's
attorney, or United States attorney) seeking punishment  -- a fine or
imprisonment or both. Civil cases, on the other hand, are usually
brought by private parties or corporations seeking to collect money
damages.

Second, in a criminal trial, the defendant, the person accused of the
crime, has a right to testify in his or her own defense, but also,
under the Fifth Amendment, a right not to testify (see page 215). The
decision made by the defendant and his or her attorney about whether
or not to testify may be one of the most crucial decisions in a
criminal case. However, in a civil case, the defendant can be
compelled to testify against his or her will.

The third major difference involves the burden of proof. In a civil
case, the plaintiff (the person who brings the lawsuit) only has to
show by "a preponderance of the evidence" that the facts alleged are
true (see page 424). In a criminal case, the prosecution has the much
heavier burden of proving that the defendant is guilty "beyond a
reasonable doubt" (see page 214).

Fourth, and perhaps most important: In a criminal trial, once you are
acquitted, you can never be tried again for the same crime. The
prosecution can't try to overturn your acquittal and can't charge you
again for the same crime because the Constitution protects against
double jeopardy. However, the rule against double jeopardy has one
important loophole: If the same set of actions violates both state and
federal laws, you can be prosecuted twice  -- once by state
prosecutors and once by federal prosecutors. Say, for example, someone
commits a bank robbery. Under state law, that person can be charged
with robbery. Whether acquitted or convicted, the same person can also
be charged with the federal crime of robbing a federally insured bank.
Still, while such double prosecutions are possible, they are extremely
rare.

(For more on civil cases, see Chapter 29, SUING AND BEING SUED.)


PROBABLE CAUSE

Max wasn't the only guy pulled in from the concert. But he was one of
the few who actually had a joint hanging from his mouth. Many of the
others had just been standing peacefully swaying to the music when
they were herded away by the police.


Can the police just arrest anyone?

No. The state must be able to demonstrate that the police knew enough
at the time of arrest to believe that an offense had been committed
and that the defendant likely committed it. In other words, police or
prosecutors must show probable cause to make an arrest without a
warrant, which is a judicial authorization for the police to arrest
someone. (For more on warrants, see page 210.)

While the law favors arrests made on the basis of a warrant issued by
a judge, there are circumstances when it excuses the lack of a
warrant. This happens most often when the situation does not give the
police time to get a warrant. Thus, a police officer without a warrant
can still find probable cause to believe a crime has been committed.
If the officer sees the crime committed, or if the officer can later
prove that his (or her) observations gave him probable cause to act as
he did, then a warrantless arrest can be justified. A hunch that
someone is a bad guy is not enough to establish probable cause; the
officer must be able to cite concrete details, such as a marijuana
cigarette hanging from the suspect's mouth.

If the defendant chooses later to challenge the right of the police
officer to arrest him or her, the officer will have to explain
(usually at a hearing) how he or she determined that probable cause
existed. The judge will decide if there was probable cause to detain
and charge the suspect. For serious felonies in most states, this may
involve a preliminary hearing (see page 208). For a misdemeanor, this
may involve only a judge's examination of the police report.

If time and circumstances allow it, the police should obtain a warrant
before an arrest. A prosecutor or an officer can go to a judge with
evidence that there is probable cause to believe a defendant committed
a crime and ask for an arrest warrant. For instance, if a witness says
she saw Max stash a load of pot in the trunk of his car, the
prosecutor (or sometimes the police) could ask a judge to authorize a
warrant for Max's arrest. The judge must grant the request if it is
shown that it is based on facts showing probable cause rather than on
a hunch without any evidence.


Miranda And Self-Incrimination

Max had thought the cop was just some joker until he grabbed the joint
out of Max's mouth. He never said a word about any rights, but grabbed
Max roughly by the hair (it was long In those days), handcuffed him,
and pulled him through the crowd. On the way to the station, the
officer kept asking questions. "Aren't you supposed to read me my
rights?" Max asked.


What is the Miranda warning?

You've probably heard it lots of times on TV crime shows: "You have
the right to remain silent. Anything you say can and will be used
against you in a court of law. You have the right to speak to an
attorney, and to have an attorney present during any questioning. If
you cannot afford a lawyer, one will be provided for you at government
expense."

That is the Miranda warning, named after a famous case involving a
suspect named (what else?) Miranda (see the Case in Point on page
197).

All the statements in the warning are true; however, it is not
necessary for a police officer to recite the magic words in order to
arrest you.

In most situations, the police will give the warning only if you are
going to be asked questions; if they interrogate you outside the
presence of your lawyer without giving the warning, any answers you
give probably cannot be introduced in court as evidence against you.
However, the police are allowed to ask routine booking questions such
as your name, address, date of birth, and social security number in
order to establish your identity, without reading you the Miranda
warning. You can also be given a Breathalyzer test without the
warning. (See page


Is an arrest illegal If the police neglect to read the Miranda rights
to the suspect?

No. These rights are your protection against self-incrimination only,
not against being arrested. The only thing the police need before
making an arrest is "probable cause" (see page 196) -- a sufficient
reason, based on facts and observations, to believe you have committed
a crime. Police must recite the Miranda rights only when they are
about to interrogate a suspect. If they do not, then a judge might
later throw out any statements made, although the arrest may still be
valid.


The Police Interrogation

At the station, another officer did read Max his rights. Then he
started quizzing Max about who sold him the pot. "It'll go a lot
easier if you cooperate with us. We can make you a good deal here" he
said.


Is It wise to cooperate with the police?

If you are arrested, the safest policy is to treat the police with
courtesy, but do not answer any questions unless your lawyer tells you
to. In every case, it's better (from your point of view) to remain
silent. Remember that Miranda is a warning that you have a right not
to speak; it is not a formula that absolves the police from trying to
pressure you. However, Miranda was designed to stop police misconduct
by allowing suspects to have their representatives -- lawyers --
present to stop police coercion.


What if the officer tells a person that talking will make things go
better?

Don't fall for it. Officers may try to cajole you into talking, or
tell you things will go easier for you if you talk, but many people
have been convicted by their own mouths in such situations. The police
may even offer a deal -- promising that if you talk, your punishment
will be lighter -- but this is generally a ploy, since only the
prosecutor has the authority to make such a deal stick. Besides, your
lawyer is better trained to negotiate for you.


What does it mean when someone waves Miranda rights?

After a suspect has been read his rights, the police often go on to
try to obtain information and a confession, if possible. If the
suspect decides to cooperate, he must do so voluntarily. Because he
has the right to remain silent, the act of speaking about the case is
considered a waiver, or a conscious decision to speak despite those
rights.


What if a suspect starts talking even when the police have asked no
questions?

A suspect who talks freely without being asked any questions has given
up his or her Miranda rights -- even if the warning wasn't given.
Anything you say to the police is "on the record" as soon as you open
your mouth. Only when the police ask questions after you are arrested
and in custody are they required by law to inform you of your right
against self-incrimination.

Again, it all comes down to a pretty simple rule: No matter what
happens in the course of being stopped and questioned or arrested,
don't answer questions by police without an attorney present. In fact,
you probably shouldn't talk to anyone else about the case before
consulting with a lawyer.


Can people incriminate themselves after being arrested by talking to
others out of earshot of the police?

Yes. Let's say you are thrown into a police van with other suspects
and you boast that you did what you're being arrested for. Those
people can be called to testify against you, and their evidence can be
used to convict you. The same thing applies to any statements you make
to a friend or bystander, and it holds true whether or not you've been
given the Miranda warning.


Isn't there anyone a person can confide in once he or she has been
arrested?

Yes. You may talk to your lawyer and to his or her assistants. In
fact, it is crucial that you tell your attorney the full truth in
order for him or her to formulate the best defense. Don't try and keep
bad news from your lawyer.

There was a time when you could also speak frankly to your spouse,
religious adviser, personal doctor, or therapist. Such conversations
were considered "privileged," and these people usually could not be
compelled to testify against you. Recent changes in the law have
restricted these privileges, so the best rule is to discuss your case
only with your attorney and follow his or her guidelines before
discussing the details with any other people.


Getting Booked

Finally, a guard called Max's name and took him to the booking area of
the jail, where other guards asked him a lot of questions about who he
was. Then they fingerprinted him.


What is booking?

It's the process in which the details of who you are and why you were
arrested are entered into the police records. If this ever happens to
you, you'll find it something like registering at a hotel, only much
slower and less pleasant. You'll be asked a lot of questions about
your identity -- it may remind you of movie scenes in which prisoners
of war are asked for "name, rank, and serial number" -- and you may be
fingerprinted.

The police don't need to read you the Miranda warnings before asking
questions about your identity, and you should comply with the booking
procedures. The questions are not designed to incriminate you, and
establishing your identity will be necessary in order to be released
on bail. Your personal property, including your money, will be
inventoried, put into a locker or other storage, and returned when you
are released.

If you need medical attention, or if you have prescription medication
that you must take, such as an asthma inhaler, you should tell the
jailers during the booking procedure. They don't have to let you keep
any medication, but they may send you to a doctor or nurse to
administer what you need.

After booking, you'll probably be put into a cell, awaiting an
appearance before a judge or magistrate, and you'll probably be given
the opportunity to make a phone call. If you are arrested late at
night or on a weekend, the process is likely to move more slowly.

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