AMERICANS HAVE RIGHTS
By Atty. Michael H. Agranoff
January, 2010

The single most incredible thing about this job is learning how few people are aware of their rights. The next is learning that when some people are aware of their rights, they are actually afraid to use them.

Here, slightly abridged, is an e-mail that I received from a client in early 2010. The substance has not been altered:

I will be meeting with you on Saturday morning. I told the social worker this. She just simply said, “Do what you need to do.”

I assume this is OK, but I just wanted to be sure.

Also, I received a message on my answering machine last night from a state police trooper. He wants to meet with me and to call him today.

Should I meet with him, or tell him that I want you there for the meeting? I don’t want to get in trouble.

Please let me know.


This woman obviously knew that she had rights, but was afraid to displease others, or get in trouble, if she used them. She correctly asked for advice. However, I found it strange that she was afraid to exercise her rights. After all, this is America, not Cuba or Burma.

The general advice is this:

I. DEALING WITH THE POLICE

A. You should cooperate with the police. They have a difficult and dangerous job.

B. When a policeman asks, always identify yourself and show identification. Give out any information that you think is needed for the officer to apprehend a criminal.

C. If the matter involves a possible charge against you, then you are allowed to refuse to speak to the officer. You do not even have to speak to the Governor, the FBI, or the President. However, the best policy is generally to speak to the police, but with a qualified lawyer present to protect your rights.

D. The police do not have to give you Miranda rights if you are not under arrest. However, anything that you say may lead to an arrest. Therefore, if at all in doubt, have a lawyer present. Do not fall for the old trick, “I haven’t accused you of anything, have I?” Or, “What do you have to hide? Why are you hindering my investigation?” A good lawyer will always cooperate with the police, but will do so in a manner that protects your rights.

E. Only the lawyer, and not you, is in a position to determine if a statement that you make will be used against you. It is not a guessing-game.

F. Further, if DCF is or may be involved, be even more careful. The world’s best criminal lawyer may have no knowledge of DCF or Juvenile Court, and is usually not aware that innocent statements in a criminal context can haunt you in a DCF context.

G. In other words, cooperate with the police, but through a lawyer.

H. It is not a question of “displeasing” the officer. This is not a po

II. DEALING WITH DCF

A. You should cooperate with DCF. DCF has a difficult and serious job, and sometimes a dangerous one. Protecting innocent children is a hallmark of our civilized society.

B. The police cannot arrest you on the sole ground that you did not make a confession. However, DCF can use non-cooperation as grounds to remove your kids or file a petition; and often does so. The reason is that DCF is not a police force, and you do not have criminal constitutional protections when dealing with DCF.

C. You should cooperate with DCF through a lawyer. The reasons are obvious, and are scattered throughout this web site. In particular, see the case articles on what happens to people if they don’t have a lawyer.

D. DCF policies, and the law, allow you to have a lawyer present when talking to DCF. Do not be intimidated.

I actually had an emergency room physician in my office once. He knew that he did not have to talk to the police without a lawyer, but thought that he was “required” to speak to DCF on their demand. Where did he get that impression? Note that there are no TV shows that feature DCF investigations, where even children may learn of their basic rights.

E. Only the lawyer, and not you, is in a position to determine if a statement that you make to DCF will be used against you. It is not a guessing-game. The rules are different than in casual conversation.

F. In other words, cooperate with DCF, but through a lawyer.

G. It is not a question of “displeasing” the social worker. This is not a popularity contest, and you are not there to make friends. Resist the tendency to live your life by pleasing others; there is a time and a place for everything.

III.WHEN IN DOUBT

A. Ask a qualified lawyer.

B. Do not take legal advice from police, social workers, physicians, accountants, teachers, school principals, probation officers, psychologists, therapists, friends, well-wishers, internet bloggers, court clerks, and the like. Even if they mean well, the advice is probably worthless; and often is more harmful than no advice at all.

C. Remember that this is still America. Be cooperative and not hostile; but be on guard.