By: Mark Cohrs, Chief Investigator
The Gasper Law Group
The common belief that police officers are always required to administer a Miranda Advisement when performing a lawful arrest is probably one of the greatest myths perceived by the general public, especially for those who have been involved in any unfavorable contact with law enforcement. Any of us who have watched cop shows or movies on a regular basis can likely cite those rights as well as any trained officer on the street. But just in case you haven’t actually heard those rights stated verbatim, here they are.
1. You have the right to remain silent.
2. Anything you say can and will be used against you.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
Now here are a couple of phrases that you may not have heard during your Hollywood legal education classes.
Do you understand each of the rights I have explained to you?
Having these rights in mind, do you wish to talk to me now?
Both of these questions must be answered in the affirmative as a secured waiver of rights.
So, the next logical question is that of when law enforcement officers are required to advise persons of their rights. The answer is actually quite simple in its own context. Miranda needs to be administered when the person being questioned is “In Custody”. Next, get ready for the more difficult question. What circumstances constitute “Custody”? This is often the point when the money you paid your lawyer becomes money well spent.
Law enforcement officers generally define custody as a physical restriction of the person’s ability to leave to the extent associated with a formal arrest. Savvy defense attorneys routinely challenge this aspect of non custodial claims in the context of the specific environment created by the police. A classic example of a questionable non custodial interview often occurs when the suspect is handcuffed, and secured in the caged back seat of a police car. The officer often begins his or her written account of the interview with the disclaimer phrase “I advised the suspect that he is not under arrest and is free to leave at any time.” On the surface, the logical person would conclude that there’s no way that the handcuffed individual seated in the secured back seat of the police car is in any way free to leave. There are, however some specific legal reasons why officers may detain someone in that exact fashion without exposing that person to a technical custody situation. Factors relating to officer safety issues in combination with the nature of the investigation may actually preclude a future finding of physical custody for this purpose, for example, the case of an irate driver who was just t-boned by a DUI driver. However, if that same handcuffed subject had just been positively identified by five nuns and two priests as having robbed a bank a gun point, he’s probably not going to be allowed to leave.
Once the attorney alerts to a potential violation of Miranda, the issue will typically be brought before the trying court in the form of a motion to suppress the evidence. Once the Judge has heard the evidence from both the Defense and the Prosecution in the hearing, the Judge can choose to exclude the evidence, in the event that the Defense prevails. What that means, is that the evidence, specifically the information learned from the violated subject will be deemed to be inadmissible (for most purposes) in future proceedings. That does not necessarily mean that the case will be dismissed. If, for example the suppressed evidence is in the form of a confession from the Defendant, the Prosecution may still be able maintain their case with the use of other evidence, such as eye witness testimony and identifications, as well as evidence legally seized pursuant to the arrest and investigation.
So, in a nutshell, your defense to an alleged criminal act will not usually prevail on the sole basis of “They didn’t read me my Miranda Rights”. Having an alibi that’s supported by those same five nuns and two priests generally tends to provide your attorney with a better defense strategy.
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