ARREST & INTERROGATION
Know your rights.
Review from Boring Thursday


Sources of law: statutes.
Sources of law: judge made law.
 Judges
write opinions and those opinions are “law.”
 Stare decisis.
 We inherited this judge-made law from merry old
England.
 Boring.
Today: Arrest and Interrogation
When is someone under
arrest?
What are your rights
when under arrest?

ARREST!

“5-year-old arrested.”
ARREST!

“Crazy girl gets arrested.”
ARREST!

“Cops arrest fireman.”
ARREST!
What do these video
scenarios have in common?

Brainstorm
for Starbursts
ARREST!

United States v. Mendenhall (SCOTUS – 1980).
 The
threatening presence of several officers;
 The display of a weapon by an officer;
 Some physical touching of a citizen’s person;
 Use of language or tone indicating compliance is
compelled.
ARREST!

“So long as a reasonable person would
feel free to disregard the police and
go about his business, the encounter is
consensual and will not trigger Fourth
Amendment protections unless it loses
its consensual nature.”
ARREST!

Case studies. Break up into three groups.
 Read
the problem.
 Pick characters.
 Discuss the questions.
 ACTION!
ARREST! Debrief
Factors demonstrating arrest.
 Reasonable person test.
 When in doubt, simply ask the
officers if you can leave.
 ALWAYS BE POLITE.

INTERROGATION

Objectives:
 Know
your rights when police have taken you into
custody.
 Know how to invoke those rights when in police custody.
INTERROGATION

Elon James White explains what to do if you’re
stopped by the police.
INTERROGATION

Your rights when in police custody:
 Right
to remain silent.
 Right to know that anything you say can be used
against you in court.
 Right to have an attorney present, even if you can’t
afford one.
INTERROGATION

When do these rights apply?
 Only
apply in custody. As in, under arrest. Not when
you’re voluntarily talking to police.
INTERROGATION

How do I invoke these rights?
 Like
Elon said, you simply say, “I WANT AN
ATTORNEY.”

What happens if you invoke your rights?
 The
police must leave you alone.
Invoke: (verb) to summon into action or to bring into
existence
INTERROGATION

Case studies. Break up into three groups.
 Read
the problem.
 Pick characters.
 Discuss the questions.
 ACTION!
INTERROGATION

Group One: The Traffic Stop
INTERROGATION

Group One: The Traffic Stop.
 Did
the driver have a right to an attorney? Why or why
not?
 Did the driver “invoke” any such right?
INTERROGATION

Answers:
 No
such right – not in custody.
 Did not invoke rights anyway.

Berkemer v. McCarty (1984)
INTERROGATION

Group Two: The (almost) Silent Person
INTERROGATION

Group Two: The (Almost) Silent Prisoner
 Did
he/she have a right to remain silent?
 Did he/she invoke that right?
 What could he/she have done to stop
the questioning?
INTERROGATION

Answers:
 Yes,
he/she had a right to remain silent. He/she was in
police custody.
 No, he/she did not invoke the right to remain silent. You
really have to be silent throughout, or just say, “I’m
invoking my right to remain silent.”

Berghuis v. Thompkins (2010)
“Zip it.”
- Dr. Evil
INTERROGATION

Group Three: The Ambiguous Request
INTERROGATION

Group Three: The Ambiguous Request
 Did
the suspect invoke his right to a lawyer?
 Can the suspect’s confession be used in trial?
INTERROGATION

Answers:
 No,
the phrase “Maybe I should talk to a lawyer,” did
not invoke and the detective didn’t have to clarify.
 Yes, because the request wasn’t clear enough, the
confession can be used at trial.
 Instead, the person should have said “I want a lawyer.”

Davis v. United States (1994)
INTERROGATION

Summary
 People
in police custody have the right to remain silent
and to have a lawyer with them during questioning.
 But, a person must clearly invoke those rights.
 If a person is not in custody, it means he/she is free to
leave (but ask first!).