Friday, August 8, 2014

Legal Talk -When do the cops have to read me my rights?

The cops didn't read me my rights... So obviously my case will get dismissed. Think again.

This question comes in my office at least once a week. A person accused of a crime will come in on an initial consult with a smile on their face. They can't wait to tell me that there case is going to get dismissed and they don't need my help because, "The cops never read me my rights when they arrested me." Only to be seriously let down when I explain to them, that the cops don't have to and most likely won't read them their rights.

Crickets....Crickets... It's true.

Miranda rights don't have to be read to a person, and Miranda didn't create any new rights. All Miranda vs. Arizona  did was create an obligation on law enforcement to inform a person of their already existing rights.  Miranda vs. Arizona 86 S. Ct. 1602. (1966).  The right to counsel and the right to not incriminate yourself are in the bill of rights. The amendments to the constitution, specifically amendment 5 and amendment 6.

Amendment #5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment #6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Those rights came from the constitution, not Miranda vs. Arizona.

The Miranda warning requires that when a police officer is going to interrogate you and you are in "custodial interrogation" he or she must read you the following warning if he wants to use your admissions against you in the prosecution of your case.  The officer must inform you that you have the right to remain silent, anything you say may be used against you.  You have the right to an attorney during questioning.  If you can not afford an attorney one will be provided for you.  That is it.

When this comes all comes into play is after a person has been arrested, and hired a lawyer.  If the person made an incriminating statement to the police and wasn't given a Miranda warning then his/her lawyer will try to suppress the statement and keep it out of evidence.  During this process the lawyer will claim that the defendant was in "custodial interrogation."  The court will then have to determine if the person was in custodial interrogation and thus should have been issued the Miranda warning.  The court will consider the following factors.

1. When and where the interrogation occurred;
2. How long the interrogation lasted;
3. How many police officers were present;
4. What the officers and defendant said and did;
5. The presence of actual physical restraints on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door;
6. Whether the Defendant is being questioned as a witness or as a suspect;
7. How the defendant got to the place the interrogation took place
8. What happened after the interrogation.

-State of Kansas vs. Karin Mortin, 286 Kan. 632 (Kansas 2008)

If a court finds after considering these factors that a defendant was in custodial interrogation and should have been given a Miranda warning, but did not get the warning.  The incriminating statement should be suppressed and not allowed as evidence.  Now that alone will not get a case dismissed it will only suppress the incriminating statement and possibly any evidence derived from that statement.  That's it.

Many times even if a statement is suppressed the case can still go forward.  For example, If a person shoplifts from a store and is caught on video with the item in their possession.  Then is arrested and during a custodial interrogation admits to the theft.  Even if the person wasn't given the Miranda warning and their lawyer ultimately gets the statement suppressed because of the Miranda violation.  The state will still have the video of the person stealing and the seizure of the stolen merchandise off the defendant as evidence.  In this fact pattern, the State could still prosecute the defendant and would still likely get a conviction, even without the statement.

So the long and short of it is...Not being given your Miranda warning is Not a get out of jail free card.

To be clear,  a Miranda warning doesn't have to be given when...

1. You are voluntarily interacting with the police. If you are free to leave then a Miranda warning doesn't have to be given.

2. You are in custody but not being interrogated.

3. You are making admissions when no law enforcement officer is questioning you.

Remember, Cops don't want to read you your rights.  They don't want to inform you that you don't have to talk to them.  Cops will skate around the rules.  Common ways that cops try to do this are as follows:

1. A cop will just start asking you questions.  If a cop asks you questions don't answer.  Ask the Cop if you are free to leave.  If they say yes then leave.  If they say no, then they need to give you your Miranda warning because you are most likely in custodial interrogation.  Ask if you are free to leave and then leave.

2. A cop will call you on the phone.  They will tell you a complaint has been filed and they want to give you a chance tell your side of the story.  Don't fall for it.  What they really want you to do is provide them with evidence that they can use against you.  It is nearly impossible to be in custodial interrogation if you are on the phone.  On the phone = not in custody.  No custody means no Miranda Warning.

3. Police will talk to you at the scene, they will tell you that you are not under arrest and that they will give you the opportunity to give a written statement if you want to tell your side of the story.  You know,. "for the file."  Don't fall for it.  If your not under arrest your probably not in custody, ergo, you don't have to be given the Miranda warning.  They will use your statement against you.

Lastly, and probably most important of all.  KEEP YOUR MOUTH SHUT!  Many times the police won't have enough evidence to arrest someone or prove their case against someone until they get the suspect to start talking and incriminating him/herself.  The number one rule of staying out of trouble is, don't tell on yourself.  aka.  Keep your mouth shut.

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