Use Your Right to Remain Silent
Many of you have read a client’s review that invoking your Fifth Amendment right is advisable. I had a client and his family who were involved in a situation which they were dealing with the LAPD and the Department of Children’s and Family Services (DCFS) at the same time.
The landmark case of Miranda v. ArizonaThe landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.
The contents of MirandaWe are all aware of the contents of Miranda. It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance. More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee: say nothing or seek the help of an attorney.
If they are not cops, Miranda does not applyKeep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or spontaneously given.
Miranda waivers must be unequivocal.Miranda waivers must be unequivocal. It must be a clear invocation—answers such as “Maybe I should talk to a lawyer” have been analyzed in court. This was examined in Davis v. United States. Agents of the Naval Investigative Services interrogated the defendant in connection with a beating death of a sailor. Initially, the defendant waived his rights but 90 minutes into the interview, he states, “Maybe I should talk to a lawyer.” The agents asked clarifying questions and the defendant replied, “No, I don’t want a lawyer,” the interrogation continued with resulted in incriminating statements. The court rejected the defendant’s argument that any mention of a lawyer, however ambiguous is insufficient to invoke the right to counsel and that questioning must cease. The lesson here is that make your requests clear and simple—no wavering is allowed.
The Miranda warnings are short and simple. They are not complicated. A statement of “I want to remain silent and I want an attorney” will suffice. I cannot emphasize enough that many defendants “bury” themselves with their own statements. The protection afforded by Miranda should not be ignored but taken advantage of and invoked.