Reduce the Risk of Additional Charges Following an Arrest

When someone is placed under arrest, they are booked under specific charges pertaining to that arrest. Just as the individuals arrested can fight to have charges reduced or dropped, there is also the chance that extra charges can be added following the arrest.

Failure to comply with arrest and booking

Photo by: Campaign Against Arms Trade

One main cause of added charges following an arrest is due to the behavior of the alleged offender during the time of being arrested and placed behind bars. Being handcuffed and whisked off to jail is a stressful moment that can unfortunately bring out the worst in people. Some individuals make a bad situation worse by:

• Resisting arrest or as Utah Code 76-8-305 states “refusing to perform any act required by lawful order necessary to effect the arrest or detention (…) made by a peace officer”, a class B misdemeanor;
• Attempting to flee police, a class A misdemeanor;
Spitting, urinating, or propelling any bodily fluid at an officer, potentially adding a third degree felony onto the list of charges;
• Physically assaulting an officer while in the custody of law enforcement, a third degree felony defined by section 76-5-102.5. If the charges are enhanced to aggravated assault by a prisoner, then the defendant may face an additional second or first degree felony as stated in 76-5-103.5; or
• Once at the local jail, kicking, punching, or otherwise damaging jail property, resulting in an added third degree felony.

Regardless of whether or not the arrestee feels they should be taken into police custody, they are encouraged to be respectful and cooperative during and after being read their Miranda rights. This does not mean they have to converse with officers regarding details of the arrest however, as that in itself can lead to added charges.

Spilling all the beans

Photo by: Emilio Küffer

While there are some who react vehemently to being placed under arrest, there are others who go too far the other direction by trying to be overly compliant to officers on the scene. In an effort to possibly smooth things over, some arrestees decide to share every single detail related to the charges. Not only can their over-the-top candor cement the charges against that individual, it can help investigators who may already be trying to tie other charges to the defendant. It is best to politely decline any discussion with officers until an attorney is present.

Accumulating charges prior to trial

Another way charges can be added is if more evidence comes to light or if the prosecution attempts to add or enhance charges. For example, if a person is arrested for possession of marijuana, the prosecution could look at the amount of marijuana in question, and attempt to call it enough to charge the defendant with intent to distribute, even if it was initially determined to be only for personal use. If the person drove through a school zone with the marijuana in their car, the prosecution could also add enhanced possession in a school zone charges. Maybe they had kids in the home or car, so by all means throw in some child abuse or child neglect charges on top. Also known as stacking charges, this is a common occurrence and a reason so many individuals get scared into accepting plea deals (a.k.a. pleading guilty to lesser charges) without first obtaining proper counsel for themselves.

Have an attorney ready

Photo by: Kevin Johnston

With so many variables working against someone following an arrest, the best plan to avoid additional charges is to:

• remain calm;
• be prepared with the name of a reputable attorney;
• give the defense attorney’s name to authorities during the arrest;
• Stay quiet until advised otherwise by counsel; and finally
• Trust that a knowledgeable attorney will be able to see through charge stacking to decide the best option possible for each defendant depending on their specific case.

Invoking Fifth Amendment Rights Involves Speaking After All

Prior to an arrest, the arrestee is read their Miranda rights which state they have the right to remain silent; however invoking their Fifth Amendment Rights prior to an arrest may actually involve speaking after all.

Cooperate without self-incrimination

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When an individual is facing legal trouble, it is common for that person to either:

• Cooperate and communicate fully with law enforcement, often offering more information than they should, or
• Clam up, refusing to say a word because they have the “right to remain silent”, right?

Unfortunately, there is a fine line that persons facing arrest must tread between cooperating with police and protecting their Fifth Amendment Rights against self-incrimination. Although everyone has the right to remain silent, that doesn’t always mean it’s the best choice to be a stone wall. Complete silence could be seen as insubordination or even guilt. So when should a person remain silent and how can they do so without causing rifts with law enforcement?

Miranda Warning

The Miranda Warning is given to everyone prior to arrest and acknowledges the arrestee’s right to remain silent and to obtain counsel before being questioned. Once the Miranda Warning is read, it is wise to keep quiet until legal counsel is there to assist in the interrogation. What about the sometimes lengthy time before being arrested? What if an individual isn’t actually being arrested, just questioned?

Questioning or interrogation

If an individual is facing questioning from law enforcement without an attorney present and they feel wary about answering any questions, they can politely ask police if they are being arrested or if they are free to go. If they are not being arrested, then they have no legal obligation to stay and answer questions from officers on scene. If officers state that they are being arrested or detained, that is when the individuals should have the Miranda Warning read to them. If the questions persist without a warning given, the arrestee should then invoke their right to remain silent, by verbally informing officers they:

• Are invoking their Fifth Amendment Rights (or Miranda Rights);
• Wish to remain silent; or
• Would like their attorney present.

According to the United States Supreme Court in Davis v. United States, “If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present.” Once a person has invoked their Fifth Amendment Right to remain silent, they are encouraged to contact a reputable criminal defense attorney to be present in all future interrogations.

Prisoners’ Rights in Utah

When someone breaks the law in Utah, they may lose certain freedoms however there are prisoners’ rights that are to be upheld during the legal proceedings as well as after those individuals have been incarcerated.

Human rights

Prisoners' Rights

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Human rights, often referred to as inalienable rights are given to all men and women for simply being human. These rights are indivisible and universal. They do not differ depending on gender, race, ethnicity, nationality, or language. In the United States, these rights are protected by the Constitution and Bill of Rights. Internationally, these rights are protected under the Universal Declaration of Human Rights adopted by the United Nations which defines rights of freedom of religion, life, and opinion while protecting all from discrimination, slavery, torture. No one is to deprive another of any basic human rights unless done legally through a court of law.

Prisoners’ rights

Although human rights are permitted by all, when someone is placed in jail or prison, they end up losing the right to exercise some of their basic civil liberties for a time such as:

• The right to freedom;

• The right to vote;

• The right to bear arms;

• The right to serve on a jury; and sometimes

• The right to life (death penalty).

An incarcerated person may temporarily or permanently lose the right to enjoy some basic human rights however prior to their arrest as well as during court and even while incarcerated, they maintain certain rights and protections regardless of the crime for which they are accused. These protections of prisoners’ rights are explained in the Fourth, Fifth, Sixth, and Eight Amendments to the Constitution of the United States.

Fourth Amendment

Photo by: USAG-Humphreys

Photo by: USAG-Humphreys

The Fourth Amendment protects those suspected of a crime with:

• The right against unreasonable searched and seizures.

The Fourth Amendment to the United States Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Fifth Amendment

The Fifth Amendment also protects those facing crimes with:

• The right to remain silent;

• The right against double jeopardy;

• The right to avoid self-incrimination;

The Fifth Amendment to the Constitution states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Sixth Amendment

Photo by: J

Photo by: J

If someone is charged with a crime and is facing a court of law, the Sixth Amendment ensures they have:

• The right to a speedy trial;

• The right to a public trial;

• The right to an impartial jury;

• The right to cross examine a witness;

• The right to an attorney;

According to the Sixth Amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Eighth Amendment

When someone is incarcerated, they continue to have rights. These include:

• The right to a reasonable bail; and

• The right against cruel and unusual punishment.

The Eighth Amendment wraps up the civil liberties allowed to all defendants as well as a prisoners’ rights while incarcerated. It states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Legal assistance to protect human rights

Photo by: Flazingo Photos

Photo by: Flazingo Photos

It is vital to those seeking legal counsel to understand their constitutional rights during an arrest as well as in court proceedings and prisoners’ rights if incarcerated. With the help of a qualified criminal defense attorney, these basic human rights will be upheld by law.