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Dealing with Miranda in coustody.

Miami, FL |

Are your rights violated if you are not told that you have the right to consult with a attorney prior to questioning?This is how the Miranda rights looks that was spoken to my brother.If you want a lawyer to be present during questioning at this time or anytime hereafter you are entitled to have a lawyer present.if you were to replace the word hereafter with thereafter does that mean anything?words are very important when anyone is dealing with Miranda.there is a case that supposely rule on this but if anyone as look at the details they would see the difference.That case is call Powell vs Untied State.Powell argue that he was told that he had the right to consult with a attorney prior to questioning but never during questioning.The court ruled saying that long as your told that you can consult with a attorney prior to questioing that cover the beginning to the end.My brother case is different.He was told that he can have a attorney during but he was never told that he can consult with a attorney prior to questioning.

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Attorney answers 3


Was he in custody at the time? That is an important factor. If they just walked up to him and started chatting it up and started questioning him but he was not "under arrest", then they do not have to give the warnings. Once he says something incriminating and they decide to arrest him, then they can give the warnings as to further questions. Also, they do not have to give the warnings if they are not asking questions. So if they arrest someone and they start blabbing about everything they did illegal but a cop doesn't ask a single question, there is no violation.


Your brother should consult with his own attorney who can carefully review when and what your brother was told (or wasn't told) to determine if he has a viable motion to suppress his statements. Challenges to the admission of statements are very fact-specific.


Your rights are violated if, prior to being questioned while you are police custody, you are not advised that you have the right to an attorney and that you may remain silent, and anything you do say may be held against you. Think carefully about that. If you say something incriminating but you are not in custody, there is no Miranda violation. If you are in custody and blurt something out without a question being asked, there is no Miranda violation. There are all sorts of variables here. Thousands of cases in courts across the country have interpreted Miranda. It is the subject of countless law review articles, and nearly endless debate. Many cases refine or limit what Miranda means. Your borther's lawyer will hopefully be aware of this, will parse through the facts, and do what he can to assure that your borther's rights are protected.

The response I have provided is general in nature, and does not create an attorney-client relationship. My practice is based in Rhode Island, and the law and practice in other states or jurisdictions may be different.

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