You Have the Right to Remain Silent

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." These words begin those famous warnings that we all know from television cop shows as Miranda warnings. My guess is that most people do not think twice about what these words mean when a police officer has just read their rights to them. This is understandable. When a person is in a situation in which a police officer is reading Miranda warnings, the person is in the custody of the police, may be in handcuffs, may be in the back of a police car or in a small interrogation room of a police station, and likely feels extremely vulnerable and unsure about what is happening. However, this is the time when you need to think about what police officers are telling you and what it means for you. So here is my quick and dirty guide to why you should listen to the police and invoke your right to remain silent.

When the officer is telling you that anything you say can and will be used against you, they mean it. Rules of evidence permit statements made by a criminal defendant to be admitted into evidence, whether the defendant testifies in court or not. Even if the statements do not seem to be harmful to your case, they very likely still may be. When you are being interrogated by the police, you have no idea what other evidence they may have against you. Unless you are an attorney or have done a substantial amount of research into the elements of each individual law, you probably also do not know what the State must prove in order to convict you of a crime.

As Darryl A. Goldberg stated in his 2008 article entitled, Responding to the Middle-of-the-Night Call from an Arrested Acquaintance, "A confession is the most powerful piece of evidence for the prosecution. What you see on TV certainly rings true in almost every case: whatever you say can and will be used against you." Confessions are often the main piece of evidence used to convict a criminal defendant. Keep quiet, do not confess to a crime or make any statements that could be used to prove that you committed a crime, and the State's job of proving you guilty is much more difficult. Moreover, research has shown that even innocent people sometimes make incriminating statements or outright false confessions. See this, this, and this. Don't take the risk that your statement may be interpreted as incriminating or that you may succumb to police pressure.

So how do you make sure that questioning ceases and that you will not continue to be questioned? Simply say: "I do not wish to speak with you. I would like to speak with an attorney right now." This ensures that you have invoked your right to remain silent, and also that the questioning must cease because you have requested an attorney. In addition, you should then speak with a criminal defense attorney as soon as possible, so that the attorney may represent your interests in dealing with police and with the State and ensure that you are not questioned further.

Expungement in South Dakota

During the 2010 South Dakota legislative session, a bill (HB 1105) providing for expungement was passed and signed into law. That law has since been codified at S.D.C.L. 23A-3-26 through 23A-3-33. The law is clear that expungement, as provided for in South Dakota, merely seals records and does not actually destroy physical records. Sealing of records means that those records may only be accessed by order of the court. Individuals may seek expungement of arrests occurring at any time before or after the statutes' effective date of July 1, 2010. There is no statute of limitations on expungement of arrests.

The new law provides for expungement of arrest records after one year from the date of the arrest if the State has not filed an information or indictment. Arrest records may also be expunged at any time after an acquittal. Although not specifically addressed in the statutes, it appears that upon granting a motion for expungement, any and all court records may also expunged. I come to this conclusion, as 23A-3-32 makes clear that the purpose of the statutes is to restore "a defendant or arrested person" "to the status the person occupied before the person's arrest or indictment or information." However, guidance from the State Court Administrator, as published in the July 2010 issue of the State Bar newsletter states that, "[t]he motion and any proposed order should clearly identify the records sought to be expunged." Therefore, if an individual would also like the court records sealed, the motion must so state.

Motions for expungement are treated as civil filings, and begin a new civil case. Therefore, civil filing fees and a civil case filing statement are required. Guidance, as to how expungement motions are to be captioned, was also provided in that same issue of the State Bar newsletter. Motions for expungement are to be served upon the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no information or indictment filed.

What is truly interesting about the expungement provisions in South Dakota's law is that individuals are no longer required to disclose arrests, informations, or indictments after those records have been expunged. S.D.C.L. 23A-3-32 specifically states that, "[n]o person as to whom an order of expungement has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose."