Is a police officer permitted to right up testimony in their report based on answers to questions asked before being read their Miranda rights if the person invoked their rights upon being read them?
Miranda Rights attach when the defendant is deemed to be in custodial custody. So if the defendant is free to go as he is being spoken with his words might be used against him. Feel free to call my office for a free consultation about your case.
Bradley Corbett | Attorney at Law
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So to clarify, if a person is apprehended and is being interrogated (i.e. they are in custody and do not feel free to leave and they are being asked questions) that is in violation of Miranda and those statement should be suppressed by bringing a 1538.5 motion.
There is a big misconception though in terms of Miranda violations. Most people think that a Miranda violation automatically dismisses the case. That is not true. What happens are those statements that are made are suppressed. Sometimes, that helps the case be dismissed because of a lack of evidence because the statement itself is the only evidence the prosecutor may have. You should be aware of that.
Also, you should be aware that the easiest way to prove a Miranda violation is if there is enough evidence in the police report to prove it. If there isn't, it then becomes "he said, she said" and the officer almost always wins that fight.
If you have any questions, please feel free to contact me.
Yes, a police officer can write whatever they want in their police report. Whether your statements can be used against you at trial, is another question.
Depending upon the circumstances during which the statements were alleged to have been made (i.e. while in custody and being interrogated?) this may result in the statements being suppressed. Hire a locally experienced criminal defense attorney ASAP.
Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555
In 1966, the United States Supreme Court ruled in Miranda v. Arizona that a suspect’s pretrial statement cannot be used against him if it resulted from a “custodial interrogation” by the police unless that suspect was previously informed that:
1. The suspect has the right to remain silent;
2. Anything he says can be used against him at trial;
3. He has the right to the assistance of a lawyer; and
4. If he cannot afford a lawyer, the government will provide him with one.
The Supreme Court was concerned with the inherently coercive nature of police interrogations. Thus, the Supreme Court wanted to ensure a suspect knew the rights he was waiving by speaking to the police.
The Miranda rights embody very important constitutional safeguards against government tyranny. A suspect can remain silent in the face of police questioning because the government carries the burden of proving its case and the suspect is not required to explain himself. However, if a suspect waives his right to silence and speaks to police, that suspect must know that everything said is “on the record” and not confidential. Furthermore, since our criminal justice system is very complex, all suspects are entitled to the assistance of an attorney who can provide important legal advice and guidance. The assistance of an attorney is so essential to the fair and just disposition of law that the government will provide a public defender to those charged with a crime if they cannot otherwise afford a private attorney.
Miranda’s applicability is limited to “custodial interrogations.” A suspect is in “custody” if his freedom of movement is restricted by the police. Thus, a person is considered in police custody when locked in a police car, held in jail, or otherwise unable to leave voluntarily. An “interrogation” occurs when police attempt to elicit an incriminating response from a suspect. Miranda warnings are only required in those situations where a suspect is in custody and responding to police questioning. For example, police need not give Miranda warnings to a suspect who is free to leave the police station at any time. Likewise, Miranda warnings are not required when a suspect spontaneously confesses to a passing police officer.
When a suspect receives his Miranda rights, he has to choose whether to waive his rights and speak to the police or invoke his right to silence and/or right to an attorney. The police must immediately cease questioning whenever the suspect tells the police he wishes to remain silent. However, the police may resume questioning at a later date if they once again give the suspect Miranda warnings and that suspect then waives his right to silence. Also, a suspect who invokes his right to silence in one case does not bar the police from questioning him regarding an entirely different case. The police must also immediately cease questioning whenever a suspect requests to speak to an attorney. Interrogation of that suspect may not resume until after he has spoken with an attorney.
With a few exceptions, when the police violate a suspect’s Miranda rights whatever statement they elicited cannot be used at trial against that suspect. Miranda warnings need not be given when the police question a suspect regarding information necessary to safeguard public safety, such as the placement of a bomb or other imminent threats. Also, an invalid confession obtained prior to Miranda warnings does not taint a later confession which complies with Miranda. Furthermore, an invalid statement under Miranda can be introduced at trial if the defendant testifies to something contrary to the invalid statement.
The law pertaining to Miranda rights is not as straight forward as television shows would lead you to believe. Many suspects make statements to police they later come to regret. A knowledgeable and experienced defense attorney should be able to evaluate Miranda’s applicability to any case and exploit any mistakes made by the police.
Law Office of Andrew Limberg, APLC 380 S. Melrose Dr., #329 Vista, CA 92081 (760) 806-4381
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