You Have the Right to Remain Silent But You Must Claim It.

"You have the right to remain silent, anything 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 you. You may exercise these rights at any time."  This phrase, or similar versions to it are commonly referred to as your "Miranda Rights."  They are meant to explain a persons right against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution.

The Fifth Amendment to the United States Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself..."  This right exists in any circumstance where a persons answer to a question may have the tendency to incriminate them or lead to the discovery of incriminating evidence.  According to the United States Supreme Court, this privilege "protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence."  The Iowa Supreme Court has further explained that the right is "properly asserted where the answer might furnish a link in the chain of evidence needed to prosecute a crime."

Many people faced with questioning by law enforcement or other individuals such as employers or school officials, often hesitate to come out and "plead the 5th."  Their thought process is that if I "plead the 5th" the person will know that I am hiding something and will assume I have done what they have accused me of doing.  Based upon the United States Supreme Court's recent decision in Salinas v. Texas, "pleading the 5th" is precisely what a person must do if they are to prevent their silence from being used against them."

In Salinas the defendant voluntarily submitted to questioning by law enforcement.  He was not advised of his Miranda rights since it was a voluntary questioning and he was free to leave at any time.  He voluntarily answered a number of questions about a homicide but then hesitated when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match his shotgun.  He was ultimately charged and convicted of Homicide based in part upon his reaction to the officers questioning which was used against him in his trial.  The United States Supreme Court, in a narrow 5 to 4 decision, concluded that because Salinas did not clearly and unequivocally invoke his constitutional right to remain silent (plead the 5th) in response to the question, his action was not an invocation of a constitutional right and consequently could be used against him.  Justice Alito's quote best sums up the Court's opinion: "A witness who desires the protection of the privilege must claim it."

The lesson provided by the Salinas decision is quite simple.  If a person wants to exercise their constitutional right to remain silent, they must be clear and unequivocal about it, otherwise they run the chance that their response to a question may be used against them.  A good example of a clear an unequivocal invocation of a constitutional right against self-incrimination can be found in the recent Iowa Supreme Court decision of State v. Washington, in which the defendant "plead the 5th" when the sentencing judge asked if a random urine test would be positive for drugs.  In response to that question, Washington's lawyer, clearly and unequivocally invoked his right against self-incrimination on his behalf, and the Iowa Supreme Court concluded that the defendant properly invoked his right to remain silent and the sentencing judge improperly punished him for exercising that right.

It has been said that the right to remain silent is probably the most commonly known right in our country but is the most difficult right for people to actually exercise.  The United States Supreme Court's decision has made this ever more apparent.  This is why the attorneys at GRL Law have created the Iowa Driver's Rights Card and Oh Crap App., to educate and assist citizens with knowing and invoking their constitutional rights when faced with a law enforcement investigation.  As it stands today, the law still prohibits the government from using a persons invocation of a constitutional right against them if they are later charged with a criminal offense.  However, the right must be clearly and unequivocally invoked.  You cant be shy, passive or hesitant when invoking the right.  Come out and say it: "I plead the 5th".  This is important because while the police officer may think he knows why you are invoking your right to remain silent, if charges are filed, your invocation of your right cannot be used against you in any of the court proceedings.  Your failure to invoke your rights however can and will be used against you.

Know your rights; Exercise your rights; Preserve your freedom!

Right to Private Consultation with Attorney

"Those holding custody of arrested persons should honor attorney requests for a private, barrier-free meeting room. Upon request, video and audio recordings should be turned off during the attorney consultation or the attorney should be allowed to temporarily block the camera. In any event, audio and video recording of the in-person attorney consultation shall not be admissible against the accused." Those are the words of Justice Waterman of the Iowa Supreme Court in their recent decision of State v. Walker.

Iowa law has long provided an arrested person the right to call, consult, or see a family member, an attorney, or both, upon arrival at the place of detention following their arrest. In the context of an arrest for operating while intoxicated, if a person requests such a consultation, the arresting officer must give them a "reasonable opportunity" to have such a consultation prior to making their decision regarding chemical testing. See "Your Rights." The question that arose recently, is what level of contact may an attorney have with an arrested person if they come down to the police station to have a personal consultation with the individual. In Walker, the attorney was forced to meet with his client over the phone with a glass partition separating them. The Iowa Supreme Court's answered the question by concluding that an attorney must be given face to face contact so long as there is no specific basis to believe there would be a safety concern. In other words, if the arrested person is behaving himself/herself, the attorney is allowed to meet with them face to face.

Face to face consultation with an attorney is an important right available to a person arrested for operating while intoxicated. Law enforcement has already subjected the individual to "standardized field sobriety tests" and has formed their own conclusion that the person is intoxicated. A competent and qualified attorney must be able to make their own independent evaluation of an individuals level of sobriety in order to provide proper legal advice. This is especially true since Iowa Court of Appeals cases have concluded that law enforcement is not required to share the results of their preliminary testing with the arrested individual. Thus, it is only fair that if an attorney asks, he must be given a "barrier-free" private meeting room to independently assess their client.

The next question that arises is what about video recording the consultation. Law enforcement has an interest in ensuring the safety of the attorney and is also required to keep the arrested person under observation for fifteen minutes prior to administering the breath sample. However, these interests must be balanced with the arrested individuals right to have a private and confidential consultation with his attorney where the attorney may wish to conduct an independent assessment of the persons intoxication prior to providing advice regarding chemical testing. Recognizing this as an important right, the Iowa Supreme Court also concluded that law enforcement may not video or audio record the private consultation. The recording devices must either be turned off or the attorney must be allowed to temporarily block the camera. Even if the consultation is somehow recorded, it cannot be used against the accused.

In conclusion, the Iowa Supreme Court continued in its long standing position in protecting arrested individuals statutory right pursuant to Iowa Code section 804.20 to consult with an attorney before making a decision regarding chemical testing. It is important to note however, that the private and confidential communication provision of section 804.20 does NOT apply to anyone but attorneys. Thus, it is imperative that non-attorneys consulting with an arrested person understand that everything they say or do is likely being recorded and may be admissible against the individual. This brings us back to the three keys to surviving an arrest for OWI: Shut up; Wise up; Lawyer up.

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.