| Police Questioning & Miranda |
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Miranda Warnings? Who needs them?Commentary by Jason Brewer, Esq.I am continually asked in both my professional and personal life about the topic of when a suspect is entitled to being advised of their Miranda rights. I have had numerous clients that were under the impression that they had an absolute right to an advisement of their Miranda rights and the fact that they were never advised of these rights somehow necessitates that their case be dismissed. The fact that some individuals are arrested and charged with various crimes and offenses without hearing the familiar “You have the right to remain silent” is not a fatal mistake to the police or any subsequent prosecution that might occur. So what is the Miranda advisement and what situations trigger a suspect being advised of them? The Miranda advisement arose as a result of the landmark case of Miranda v. Arizona. The Court in Miranda held that statements or confessions that are obtained by law enforcement from an individual that has been taken into custody or is otherwise deprived of his/her freedom of action in a significant way are not admissible unless that individual is first advised in clear and unequivocal language prior to the commencement of questioning that: He or she has the right to remain silent; that any statement (written, verbal or otherwise) that he or she does make can be used as evidence against the suspect in future proceedings; that he or she has a right to consult with an attorney and to have an attorney present during any questioning or interrogation and if the individual cannot afford to hire an attorney then one will be appointed prior to any questioning. If law enforcement begins questioning of a suspect without first advising them of these rights, any statements made or evidence that these statements leads to will be inadmissible in future court proceedings. But what does any of this mean when the police are at your house in the wee hours of the morning because you and your significant other have been arguing and one of your neighbors has called the police? The important thing to remember is that the event that triggers the necessity of the Miranda advisement is “custody” or being “deprived of your freedom of action in a significant way”. The meaning of custody is fairly straightforward this means that you are arrested, that is restrained and removed to another location (usually a police station or substation). Most of us have a mental picture of what this entails even if we have not experienced it personally. If you are taken to a police station for booking and/or questioning then you are in “custody” and the Miranda advisement should be given to you before you are asked any substantive questions about whatever it is that brought you to the attention of law enforcement in the first place. Note here that I said “substantive” questioning. The police are entitled to ask you basic information (your name, date of birth, address, etc.) at the onset of any questioning. You should not expect Miranda to allow you to deny the officers this information. If the police start asking you specifics about the crime they are investigating (What were you arguing about? Who broke those dishes in the kitchen? Have you been drinking tonight? ) then Miranda applies. What about the second situation that can trigger Miranda advisements? To be “deprived of freedom of action in a significant way” is a much harder situation to ascertain. The most common situation when this occurs is when you are handcuffed in the back of a squad car but have not been transported anywhere … are you free to leave the back of the squad car? No and you are handcuffed so getting out of the vehicle with no assistance is not an easy task. Often when police are trying to determine what actually occurred at the scene of a crime they are investigating they will separate the parties involved or the suspect from other witnesses involved and start asking substantive questions of people. If you find yourself in this situation you would be best served to be very careful about what information you share with law enforcement. I would advise you to not speak with the officers and to ask to speak to an attorney immediately. I would advise you to do this even if you are in the back of a squad car or otherwise restricted from moving. The Courts have given a broad latitude to officers in allowing them to question suspects without finding that the suspect’s was deprived of freedom of action in a significant way. A common scenario occurs with you just standing next to a law enforcement officer on your front lawn and he begins asking you questions about what happened and you start making admissions or telling him things that incriminate you. Does Miranda apply? Usually Miranda will not apply (as your freedom of action is not deprived) as the officer will testify at the hearing that will be held to determine whether the statements are admissible or not that the two of you were just talking … you were not in custody and you were free to walk away it you had wanted to (even though you really weren’t) and everything you told the officer will become evidence against you or may give them an insight as to where to look for evidence that might be used against you. So what do you do? Most individuals, especially individuals who are not routinely investigated for crimes (which is most of us) want to cooperate with law enforcement. We are taught at an early age that police are there to help (and if you are the victim of a crime they are there to help). But if law enforcement is investigating you as a suspect in criminal activity they are trying to gather enough evidence to give them “probable cause” to believe that you are the person that committed the act that they are investigating. Therefore telling them that you have been drinking or that you were arguing with your significant other is often enough to give them that “probable cause” depending on the crime in question. I have had numerous clients tell me that the officer that arrived on the scene was friendly to them and just wanted to clarify what happened. They cooperated only to find their statements in police reports as admissions in their criminal cases. These types of admissions are difficult for defense attorneys to overcome when they are trying to assist clients and are one of the most common reasons that cases can’t be taken forward to trial. Admissions weigh heavily on the minds of judges and jurors in cases that are taken to trial. So unless in speaking with police you are going to tell them you had nothing to do with whatever they are investigating, then admitting that you were involved in the situation is probably a bad idea. I have found that usually telling police that you want to speak with an attorney leads them to think that you did something … but they think you did something anyway or they would not be talking to you. If you find yourself having been advised of your Miranda rights I would again advise you to request that an attorney be present for questioning. Failure to do this could result in you being subjected to fairly rigorous interrogation. As defense counsel, we are trained to fend off potentially damaging statements and admissions and law enforcement would like nothing better to gain these statements from you and hamstring your defense attorney with them as the case proceeds. There is a saying in that I have heard countless times in my line of work and that is “How does a fish get caught … he opens his mouth” and it is very true your admissions, no matter how slight or minor they may seem often enable law enforcement to ensnare you in whatever criminal scenario they have in their minds that you committed. Don’t make these admissions and you often present a significant obstacle to their investigation or at least you don’t make their job any easier. In summation, the police do not need to give you a Miranda rights before they arrest you. They do however need to give them to you before they begin interrogating you when you are in custody or conversely when they are restricting your freedom of action in a significant way. Therefore, if you are answering questions that go to heart of the case that is being investigated it is probably a good idea to request the presence of an attorney otherwise you may admit something that you do not want to or you might even admit to something you did not even do! Attorneys are trained to help you, put them in a position to do just that.
Inquiries should be directed to Jason Brewer, Esq.Free Initial Consultation |