We are often asked by clients whether their assertion of constitutional rights will, in the long run, hurt or help them with the police and prosecutors. This question comes up in a variety of contexts. Should the client assert his or her Miranda rights – to be free from questioning and to have legal counsel? Should the client voluntarily agree to a search of the home or automobile, or should the client enforce his or her constitutional rights and demand the production of a search warrant. The answer is not always so clear – but thanks to the recent Arizona Court of Appeals case of State v. Stephens, we have some answers. What makes the question a difficult one is that it’s hard in advance to weigh the costs and benefits of an assertion of rights. To be sure, a refusal to answer questions and/or a refusal to submit to a search may raise suspicion on the part of the police – the police may believe a suspect to be more likely guilty if the where the suspect asserts their right to remain silent, right to counsel, or refuses a search of their home or vehicle. Nonetheless we typically advise our clients that, regardless of whether the police will suspect them for what asserting their rights, it often remains the better course of action because it can’t be used against them in court. Indeed this has been true for some time in the context of suspects asserting their Miranda rights. An invocation of the right to remain silent cannot be used against a defendant in court. The recent Arizona case referenced above, State v. Stephens, suggests that no invocation or rights can be used against defendants, not only Miranda rights, but also now a refusal to submit to a voluntary search. In a nutshell, it’s safe to say that an invocation of constitutional rights, of whatever kind, cannot be used against a defendant in court.
