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.
Showing posts with label miranda. Show all posts
Showing posts with label miranda. Show all posts
Friday, February 20, 2009
Wednesday, May 14, 2008
I Wasn't Read My Rights
One of the most common complaints we receive as criminal defense attorneys is: "I wasn't read my rights."
The majority of the public is under the impression that if their rights (you have the right to remain silent . . . etc) are not read after someone is arrested the police did something wrong and/or the charges must be dismissed. This is simply not the case. The only time that Miranda rights must be read to an individual arrested for a crime is if the police want to question the arrested individual and then seek to use the answers against the person in the criminal prosecution. Miranda warnings are only required when: (1) a suspect is in custody; and (2) there is an interrogation.
"Custody" occurs when an individual is taken into custody (formally arrested) or otherwise deprived of his freedom in any way. This is an objective test. The only relevant inquiry is how a reasonable person in the suspect’s position would have understood his situation. Iowa has adopted a four-factor test as guidance in making this determination. These factors include: (1) the language used to summon the individual; (2) the purpose, place, and manner of interrogation; (3) the extent to which the defendant is confronted with evidence of his guilt; and (4) whether the defendant is free to leave the place of questioning.
The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. The ‘reasonably likely to elicit an incriminating response from the suspect’ language focuses primarily upon the perceptions of the suspect, rather than the intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.
If someone is in custody and is interrogated without the reading of their Miranda rights, the charge still does not get dismissed. Rather, the only remedy is that the suspects answers to the questions of police officers get suppressed or thrown out of court. However, if the defendant elects to take the stand in his/her own defense, the prosecution is allowed to cross-examine the defendant with statements made to the police even if Miranda was violated. The reasoning behind this rule is that no witness is ever given the "license to commit perjury." The Court's wont throw out a confession saying you did it and then permit you to take the stand and say you didn't do it without the prosecution being able to question you about your prior statements. This is why anybody under investigation for any criminal activity is always better off not saying anything. Remember, prisons are full of people who attempted to talk their way out of being arrested or spending a couple of nights in jail.
The majority of the public is under the impression that if their rights (you have the right to remain silent . . . etc) are not read after someone is arrested the police did something wrong and/or the charges must be dismissed. This is simply not the case. The only time that Miranda rights must be read to an individual arrested for a crime is if the police want to question the arrested individual and then seek to use the answers against the person in the criminal prosecution. Miranda warnings are only required when: (1) a suspect is in custody; and (2) there is an interrogation.
"Custody" occurs when an individual is taken into custody (formally arrested) or otherwise deprived of his freedom in any way. This is an objective test. The only relevant inquiry is how a reasonable person in the suspect’s position would have understood his situation. Iowa has adopted a four-factor test as guidance in making this determination. These factors include: (1) the language used to summon the individual; (2) the purpose, place, and manner of interrogation; (3) the extent to which the defendant is confronted with evidence of his guilt; and (4) whether the defendant is free to leave the place of questioning.
The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. The ‘reasonably likely to elicit an incriminating response from the suspect’ language focuses primarily upon the perceptions of the suspect, rather than the intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.
If someone is in custody and is interrogated without the reading of their Miranda rights, the charge still does not get dismissed. Rather, the only remedy is that the suspects answers to the questions of police officers get suppressed or thrown out of court. However, if the defendant elects to take the stand in his/her own defense, the prosecution is allowed to cross-examine the defendant with statements made to the police even if Miranda was violated. The reasoning behind this rule is that no witness is ever given the "license to commit perjury." The Court's wont throw out a confession saying you did it and then permit you to take the stand and say you didn't do it without the prosecution being able to question you about your prior statements. This is why anybody under investigation for any criminal activity is always better off not saying anything. Remember, prisons are full of people who attempted to talk their way out of being arrested or spending a couple of nights in jail.
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