Opinion: The Five Biggest Misconceptions About the American Criminal Justice System

After over a decade of practice as a criminal defense lawyer, I’m still surprised by some deep-rooted misconceptions in our society about the criminal justice system. Here are the top five.

“Speaking to law enforcement is safe if I’m innocent.”

First and foremost, do not assume you will be believed. There are times when the person calling the police gets arrested — particularly in a domestic violence scenario.

If law enforcement is suspicious of you and believes the other party, you might be giving them information that corroborates and strengthens the allegations against you. If you are still skeptical despite what I am telling you, look up the various Innocence Projects around the country that work to help falsely convicted individuals get out of prison.

“They can’t use my statements against me if they don’t read me my rights.”

When we say “reading of rights” we are usually talking about the “Miranda rights,” which I am sure you can recite thanks to their popularization in crime drama shows. These are the right to remain silent and the right to a lawyer before questioning.

One of the most common questions I get is, “Can the case get dismissed because the police did not read me my rights?” Usually, this question arises due to a misunderstanding of when police are required to read you your rights. The law makes an important distinction between being “in custody,” i.e. arrested, and being detained.

If you are detained, you are temporarily being held for safety or investigative reasons — think traffic stop. When only detained, police have no obligation to read you your rights and anything you say can be used against you.

On the other hand, if you are arrested, any questioning designed to get you to speak about a suspected crime can only happen after your Miranda rights are read. If you are questioned about the suspected crime after being arrested without being read your rights, those statements are subject to being thrown out in court in many situations.

“Law enforcement can’t lie to me.”

Courts have found that during interrogations, police are permitted to lie about the existence of evidence. For instance, “We have your DNA on the murder weapon, so you might as well tell us your side of the story.” Or, “The other person you were arrested with already told us everything, so you might as well fess up.”

This, among many other reasons, is why I always encourage anyone questioned by the police to assert their right to remain silent and to ask to speak to a lawyer — regardless of whether their Miranda rights were read.

“If I did it that means I’m guilty.”

Most people might (very reasonably) think, “I did the crime so I’m guilty of it.” Here is an uncomfortable reality of our system: being guilty is a legal term that means the government can prove each element of the charged crime beyond a reasonable doubt. Therefore, it doesn’t matter what actually happened — it’s what can be proven.

This burden of proof held by the government is what protects us all (in most cases) from being falsely convicted of a crime. But yes, it also means that people who have committed crimes can sometimes walk free.

“If they are going to get a warrant anyway, I might as well allow law enforcement to search.”

In either an attempt to appear cooperative or as a result of giving in to pressure, people will consent to searches of their pockets, purses, cars, homes and phones. Doing so, in most cases, will remove any ability for a criminal defense lawyer to argue that any incriminating evidence should not be used against you.

Making law enforcement obtain a warrant will ensure that a judicial officer makes a judgment call on whether the legal threshold has been met to invade someone’s privacy. Most importantly, it allows subsequent litigation on whether that judicial officer got it wrong or whether law enforcement misrepresented something material in obtaining the warrant. If either is deemed to be true, all the evidence found because of the executed warrant can be thrown out.

Stefano L. Molea is a San Diego criminal defense lawyer. He is a member of the board of directors for the San Diego Criminal Defense Bar Association and other organizations dedicated to defending and protecting the rights of those accused of or charged with a crime.