The Right to Remain Silent and to an Attorney

When an arrested individual requests to speak to an attorney, all interrogation and questioning must cease. The Iowa Supreme Court reaffirmed this rule in its decision entered this morning in State v. Vincent Walls. (http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090220/07-0452.pdf). After being brought in for questioning, Mr. Walls made a specific request to talk to his attorney. The interrogating officer continued with the interrogation and the Iowa Supreme Court ruled that all statements obtained following Mr. Walls' request to speak to his lawyer, must be suppressed because they were obtained in violation of the 5th Amendment to the United States Constitution. In coming to this conclusion, the Iowa Supreme Court confirmed the already well-established rule that: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 444 (1966).

The rules surrounding Miranda warnings and custodial interrogations are some of the clearest and easiest to apply for the legal community. Unfortunately, they are also the most commonly misunderstood by the general public. The rules are as follows:

1. The burden is on the police to advise the arrested person of their constitutional rights under the 5th Amendment through what are commonly referred to as "Miranda warnings" (you have the right to remain silent, any thing you say can and will be used against you in a court of law, you have the right to an attorney, if you cannot afford an attorney one will be appointed to represent you during questioning) prior to the interrogation.

2. Miranda warnings only apply when the police want to interrogate/question a person of criminal activity after they have been taken into custody or "deprived of their freedom". If the person is not in custody or otherwise detained and elect to answer questions no violation takes place.

3. If no interrogation takes place, Miranda warnings need not be given.

4. The right to remain silent and to the services of an attorney during questioning only applies to questioning, it does not apply to securing physical evidence.

5. If an arrested person indicates that he/she wishes to remain silent and does not want to answer questions, all questioning must stop immediately.

6. If an arrested person indicates that he/she wants to speak with an attorney or wants the services of an attorney, all questioning must stop immediately.

7. If the arrested person elects to remain silent or talk to an attorney, the police can re-initiate questioning if the arrested person re-initiates the conversation or contact with the police.

8. The 5th Amendment only applies to statements obtained through questioning. If the arrested person speaks of their own free will, those statements are not suppressible.

9. A violation of the 5th Amendment or Miranda only results in suppression of statements NOT dismissal of the charges.