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Top 5 Criminal Law Myths of All Time

By Christopher Coble, Esq. on April 29, 2015 | Last updated on March 21, 2019

Everybody's got that story, overheard at a party or from a friend of a friend, of getting out of a ticket or beating a charge on some technicality. Or, you watched undercover cops on TV dance around the inevitable question.

We may want to think there might be some kind of "Get Out of Jail Free" card that can be used against the system, but most of them are myths. Here are five of the most persistent myths about criminal law.

1. If We Get Married Before the Trial, My Spouse Can't Testify Against Me.

There are a couple issues here. The first is the spousal testimony privilege, which allows spouses to decline to testify against one other in a criminal trial. Note that this belongs to the potential witness, and not the defendant, so it's up to the spouse who may be called as a witness who gets to decide whether they want to testify -- the spouse on trial may not be able to stop them.

The second is the marital communications privilege, which prevents communications between spouses during a marriage from being entered into evidence. The important thing to note is that it only applies to communications during the marriage, so anything talked about before the marriage is fair game.

2. If the Officer Makes a Mistake on My Traffic Ticket, It's Invalid.

Just nope. A clerical error by itself generally won't be enough to get your ticket tossed, even if the officer misspelled your name or got your license plate wrong. (And an error won't help you out of a DUI, either.) Most courts will allow officers to correct these kinds of written errors.

3. Cops Need to Read Me My Rights as Soon as I'm Arrested.

Anyone who's watched a cop show has heard it: "You have the right to remain silent ..." But your Miranda Rights are a tricky thing. These rights only apply if you are in custody and being interrogated. That means officers have to read them before they begin questioning you. In between arrest and interrogation, you must unequivocally invoke your rights to remain silent or have an attorney. In fact, officers may have an incentive to wait between arresting and Mirandizing you, since prosecutors may be able to use your silence during that time against you at trial.

4. Undercover Cops Have to Admit it if I Ask Them.

Maybe you saw it on TV or in a movie, but think about it -- if all undercover cops had to admit it if asked, there would never be undercover operations. Police officers are allowed to engage in deception to catch criminals, including denying their role as police officers. And the lie does not make it entrapment, either. The test for entrapment is whether "the agent or official originated the idea of the crime and induced the accused to engage in it," and has nothing to do with whether the officer was truthful or not.

5. Sucking on a Penny Can Beat a Breathalyzer Test.

The misconception is that a breathalyzer tests the odor of your breath. But modern breathalyzers actually measure the alcohol concentration in your breath by passing infrared light through it. And there's nothing a penny can do to change the amount of alcohol in your bloodstream, which is passed to your breath through your lungs in your mouth. So pennies, mints, or whatever else you want to suck on or swallow aren't going to fool the machine.

There is no substitute for knowing your rights -- and TV is a bad place to get your information. Study up, ask questions, and think before you act. That is the best way to beat any system.

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