Options After Making Self-Incriminating Statements to Police

Attorney Answer

The hard part first: statements you made before you understood your rights usually cannot be thrown out just because nobody explained them to you. The work that will actually help you now is on your representation and on the evidence, not on undoing what you said.

The protections you are thinking of come from two places. The New Mexico Constitution, article II, section 15, provides that "No person shall be compelled to testify against himself in a criminal proceeding." Article II, section 14 guarantees that "In all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the witnesses against him;... and a speedy public trial by an impartial jury," and it requires that a person held on an information rather than a grand jury indictment have had a preliminary examination before an examining magistrate, or have waived it.

But the case that controls what happens to your statements runs against you, and you should know that before you build hope on it. In Berghuis v. Thompkins, 560 U.S. 370 (2010), the United States Supreme Court held that a suspect who wants the protection of the right to remain silent must invoke it unambiguously. Simply staying quiet through a long interrogation does not invoke it. Where there was no unambiguous invocation, and the prosecution shows the suspect received and understood the Miranda warnings, a waiver can be implied from the fact that he then gave an uncoerced answer. Silence followed by an eventual statement generally does not get the statement suppressed.

That does not mean there is nothing to argue. It means the argument has to be built somewhere else: that warnings were never given, or not given in a way you could understand; that you were in custody and questioned without warnings; that the statement was coerced or otherwise involuntary; or that you did make a clear invocation and officers kept going anyway. Those are factual questions, and the facts are yours to supply.

What you can do

1. Write out, in order and in detail, exactly what happened during the questioning: where you were, whether you were free to leave, whether anyone read you your rights, whether you asked for a lawyer or said you did not want to talk, how long it went on, and whether anyone made threats or promises. Do this before the memory fades. 2. Give that written account to your lawyer and ask one direct question in writing: are you filing a motion to suppress my statements, and if not, why not. Ask for the answer in writing too. 3. Ask your lawyer for the discovery — specifically the recording and the officers' reports of your interview. Watch or read them yourself. 4. If your lawyer does not respond, send the request again by mail or email so there is a record. If you have a public defender, contact the district office and ask to speak with the supervising attorney. 5. If communication has broken down entirely, you can raise it with the judge on the record at your next setting and ask for new counsel. Understand the limit: article II, section 14 guarantees you counsel, but if counsel is appointed you do not get to choose which lawyer. 6. Do not discuss the case with anyone but your lawyer. Jail calls and visits are recorded, and cellmates testify. 7. Do not count on raising ineffective assistance later as the plan. That claim generally comes after a conviction. Fixing the representation now is far better than winning that argument years from now.