Common Myths about the criminal investigation and prosecution process . . .

Other information about the criminal prosecution system.


Myth: You can't be arrested or charged with a crime unless someone reads you your rights.
Reality: You have constitutional rights but the police do not have to tell you about them. If you are in custody and they want to ask you questions the courts have told them to tell you your rights. If they don't, in some cases your answers can't be used against you in court. They usually can be used against you if you testify to anything different. They usually can be used against other people. The charges can go ahead whether or not your rights were read to you.
Myth: You have the right to make one phone call.
Reality: You have a right to make a phone call if you can get someone to accept a collect call from "an inmate at the county jail." (They won't be told your name.) The collect call (local) will cost the person accepting it more than $2.00. More information.
Myth: You can talk to a lawyer before you take an alcohol test (breathalyzer).
Reality: You can talk to a lawyer, but you will be marked down as refusing to take the test and lose your license -- even if you change your mind after a minute or so and agree to take the test.
Myth: You can refuse to take a breath test.
Reality: You can refuse to take a breath test. You will then be marked down as refusing the test and in many cases the police will take you to the local hospital, hold you down, and have someone take blood from you with a needle. Our supreme court says that this is just fine.
Myth: You are presumed innocent until (and unless) proven guilty.
Reality: Tell that to the people who have lost their jobs, their homes, their families based upon a mere accusation of which they were acquitted. Tell it to your fellow jurors when they say that "he wouldn't have been charged if he didn't do anything. While you can't be convicted of a crime unless proven guilty, you can be hurt "big time" by the mere charge.
Myth: If I change my mind about "pressing charges" I can drop the whole thing when everyone has a chance to cool off.
Reality: Charges are pressed or dropped by the prosecutor, not by the victim and not by the police. Prosecutors can and often do press charges even when the victim says that he/she doesn't want them pressed. More information.
Myth: Only guilty people ask for a lawyer.
Reality: People who know the criminal justice system, from any angle, defense attorney, prosecuting attorney, private detective, or police officer ask for a lawyer when they are being questioned, because they know that mistakes can be made (by others) that will turn innocent statements into confessions. Why ask for a lawyer if you are innocent?
Myth: I am only going to talk, I'm not signing anything until I talk with a lawyer. That way I'm not giving a statement and it can't hurt me.
Reality: This is what is called an oral statement. Then it is your word against that of the police officer (or cellmate or former friend) about what was or wasn't said. Guess who wins? (Hint: it isn't you!)
Myth: It's only a juvenile charge. I don't have to worry (I don't have to worry about my child talking with the police.
Reality: If this was ever true, it is not true today. In both Michigan and Wisconsin children are considered adults at age 17 for purposes of being charged with a crime. (If they are the victim of a crime, they are still children. They are also still subject to curfew and child-labor laws.) Children as young as ten (10) years old can be charged and convicted in adult court and sent to prison - maybe for life without parole. The age that counts is the age when the charge is brought, not the age when the offense was committed. There are other possible life-long consequences as well. More information.
Myth: When someone gets put on probation, they have gotten away with it.
Reality: Probation itself is a significant limitation on freedom. Just ask anyone who's been there. Judges often put people on probation because they want someone to keep an eye on them and make them behave in society. They often also impose jail or even prison along with the probation. When a person is on probation the probation officer is like a new parent - with the power to toss the probationer into jail. If the probation agent just suspects (with any reason) that a violation of probation rules has happened the probationer can be locked up while the agent checks it out. If the probation agent is mistaken (or abusing power) it will be straightened out later, maybe. In the meantime, the probationer is in jail, unable to go to work or attend to family matters. The probation agent determines where a probationer can live, who his/her friends can be, where he/she can work, and where he/she can travel. Probation agents have prohibited spouses from contacting each other even when neither of them wants such an order. A person on probation (and those living with him/her) are subject to a search at any time for no reason.
Myths List -- MRDA Home Page -- legal links page
Myth: The police will tell me the truth, if they don't, their whole case will be shot.
Reality: Police often believe it to be their job to lie. Even if it doesn't reach the level of "testilying," they have no qualms about lying to a person they suspect of a crime. More information.
Myths List -- MRDA Home Page -- legal links page

The government does have to prove a person guilty beyond a reasonable doubt before they can be convicted, but in many cases they can be locked up for months or even years before being tried, based upon a mere accusation. Judges often set bond in Wisconsin (and elsewhere) in an amount they do not expect the person to be able to pay.

Myths List -- MRDA Home Page -- legal links page

"Miranda" warnings

Miranda v. Arizona (384 U.S. 436)

The United States Supreme Court was troubled by police practices both denying people suspected of a crime of their right to an attorney but also of their right to stop questioning and remain silent. Questioning is often carried out in the middle of the night and continues for hours. It felt that while such practices were rare, they were still far too frequent. Confessions obtained during such interrogations might lead to the conviction of an innocent person as much as they might lead to the conviction of a guilty one. They were also troubled that the people who had regular contact with lawyers (either because they had money and dealt with lawyers in business or because they were often in trouble with the law) would know their rights. It was the poor or middle-class person who had little experience that was most likely to both need a lawyer most and know legal rights the least.

Very few cases are lost because of failure to follow the requirement for such warnings. Indeed, many people talk with the police despite having been warned. Today, police routinely continue questioning in important cases even when the person says they don't want to answer questions or ask for a lawyer.

Myths List -- MRDA Home Page -- legal links page

Why ask for a lawyer if you are innocent, you say?

Myths List -- MRDA Home Page -- legal links page

I want to withdraw charges. / I want to press charges.

In Wisconsin the charging decision in criminal cases is made by the prosecutor and only by the prosecutor. The officer's promise is not binding on the prosecutor. What the victim wants is not binding on the prosecutor. The prosecutor calls the shots and the only way it goes away is if there is no reason to think it may be true (there is no "probable cause"). (It is possible for a citizen to get a judge to consider bringing charges when the prosecutor refuses to do so, but that is much too complex to go into here.) The person who called the police doesn't get to call it all off when they come, and the police may break down the door to get in if the call was serious enough.

"I lied (exagerated) because I was mad, I want to take it back and tell the truth." This sentence is heard often in the criminal prosecution system. If you told a lie to the police, correct it as soon as possible. If you made a mistake in a statement to the police, fix it, as soon as possible. The longer you wait to make the correction, the more serious the consequences -- for the accused -- and for the person who made the statement. Often even when the misstatement is taken back, the first statement is believed and not the truth. People are in prison serving life sentences because of lies that were taken back. You do not have to talk with the police or give a statement, even if you are the one who called. However, if you choose to talk with the police, it is very important that you tell the truth. Lying to a police officer doing his/her job is a crime called obstructing an officer. If a person is convicted of a crime because of such a lie, the crime of obstructing becomes a felony.

Myths List -- MRDA Home Page -- legal links page


It is only a juvenile charge - no big deal.

Juvenile charges are very serious business. A kid can be locked up for life because of juvenile charges decided in juvenile court without a jury! A kid can be locked up until they become an adult for most delinquency charges. A kid can be transferred into an adult prison for many serious crimes.

Kids as young as 10 years old can be tried as adults and sent to adult prison. Such a sentence can be mandatory for some crimes.

A kid convicted of breaking and entering (going into a neighbor's garage and borrowing a bike without permission) can be labeled for life as a felon. Such a kid will not be able to possess a firearm for life. For some this doesn't matter, for others hunting is very important. Nobody tells these kids this in advance. It doesn't keep them from doing something wrong, it just "chops their hands off" when they do. Any felony adjudication will have this consequence.

Myths List -- MRDA Home Page -- legal links page

Special problems with age-related crimes:

The way the law is written in Wisconsin (and many other states) conduct which isn't even a crime if done by an adult is a very serious crime when done by a juvenile. Two examples: two teenagers having sexual contact (petting) or intercourse, two teenagers having a fight to see who is toughest. If done by adults with people of the same age (or older) these are not criminal acts. When two kids are involved, they become serious felonies that can have life-long consequences.

Sexual Assault:

Sexual touching (petting) between eleven- to fifteen-year-olds can (and does) result in kids being labeled as child molesters. If two seventeen-year-olds have sexual intercourse because they are in love they can both be charged as adults with having sex with a child! People who are friends can turn into something different later on. These charges can be brought until the younger child reaches the age of twenty-six! We have seen 18-year-olds charged as adults with second-degree sexual assault (maximum penalty 20 years prison) because they had sex with a willing fifteen-year-old when they were sixteen. As this is written, one of those kids is sitting in the county jail with a sexual assault conviction on his record. The consent does not matter!

A person so charged will be marked for life as a sex offender and child molester. The police teletype doesn't say this person had sex with his girlfriend when they were both fifteen, it says he had sex with a child. Girls can be charged with this as well as boys.

The sex-offender registries designed to protect us are being diluted by these offenders. The true child-molesters get lost in a sea of kids who had sex and got caught. Police departments receive scores of reports of people moving into the neighborhood with sex-offense records, their resources are wasted trying to find out about the ones who are not a threat to the community.

Even though studies show that most kids engage in some kind of sexual activity (although not necessarily intercourse) these matters are treated as very serious crimes. Assuming these studies are true, if the police could catch everyone who violated this law, half our population or more would be in jail or on probation as child molesters! Charges are routinely brought under these circumstances, especially if the police or parents think something else is going on that they can't prove -- or simply don't like the accused. This puts far too much power in the hands of police - or a jilted girlfriend/boyfriend!

Is a school-yard fist fight child abuse? The law says it is!

If two kids get in a fist fight after school, both can be charged with felony child abuse. If both are seventeen they can both be charged with felony child abuse as adults. The age that determines whether or not someone is charged as an adult is the age of the accused when the charges are brought, not the age when it happened. That the other person called the accused out to fight doesn't matter!

While it is not all right for kids to have sex -- it's not child molesting either. While it's not all right for kids to fight -- it's not child abuse.

I think that kids should be treated the same way for these crimes as if they were adults and the other person was of a comparable age.


If you think any of this is a little wrong, let your state legislators know. Let them know before someone you care about is the subject of such a charge. They thought that these laws would protect you. Instead, they are giving many of our kids felony criminal records! Suggestion - maybe a law that has a defense of closeness in age - say four years. Many other states have such a provision.

Myths List -- MRDA Home Page -- legal links page -- Legislators

They never read me my rights! I wasn't allowed to make a phone call or talk with a lawyer!

So what?

The police do not have to read you your rights when they arrest you. If they don't and they question you, what you tell them can't be used against you for some purposes. The only way a person in the Marinette County Jail calls someone outside that jail is with a collect call -- and the person receiving the call won't even be told who is calling!

If you ask for a lawyer, they are supposed to stop questioning you. Again, if they don't stop then what you say can't be used against you for some purposes.

Police will often tell a person that they are not in custody and are free to go. If they try to go, they get arrested! This is because they can question a person who is not in custody without reading those rights. They will tell someone that if they ask for a lawyer or refuse to cooperate by giving a statement they are going to be arrested. Then, after they give the statement, they're arrested anyway!

Myths List -- MRDA Home Page -- legal links page


The opinions on this page are those of Charles K. Kenyon, an attorney who has been trying cases in Wisconsin courts since 1979. He was in private practice from 1979-1987, served as Kewaunee County District Attorney from 1987-1991, and became an Assistant State Public Defender in Marinette in 1992. He is president of the Menominee River Defenders Association and president-elect of the Marinette County Bar Association. He is not speaking for the MRDA, MCBA or the State Public Defender when voicing these opinions.

Copyright 1998 Charles K. Kenyon, Madison, WI, USA. All rights reserved. This page was last updated on 1/14/98.

You can write to me about any problems with the links in the page and are invited to do so. My e-mail address is I am working very full-time and so may not have a chance to respond.

I cannot give legal advice to anyone except clients and the only clients I accept are those who qualify for public defender services by having the right type of case and by being very broke. Because of security considerations, I do not give advice to clients over the Internet. (Few of my clients have Internet access, anyway.)

Myths List -- MRDA Home Page -- legal links page