For lawyers: “You have the right...” Now what?

Factual Questions
1

Anyone who watches TV knows that if you are arrested the cops will read you your rights, which includes the right to an attorney, one of which will be appointed to represent you if you cannot afford to hire one.

What happens in real life? You are arrested, and you assert your right to an attorney. The cops will probably try to talk you out of it (“just tell us what happened. we won’t be able to help you with this if you get a lawyer…”) but you insist. Then what? Do they hand you the yellow pages and a phone? Do you have to name a specific attorney if you say you want to hire one? Suppose you already have a lawyer, but for whatever reason you can’t reach him? Does everything stop until he turns up? Or can you keep calling lawyers until you wake up somebody who will take your case? Suppose you don’t have a lawyer and don’t even know how to find one? Are the cops suppose to give you guidance? Who decides whether you can afford a lawyer, and what standard to they use? (I might be able to afford a lawyer for a traffic charge, but I don’t think I could afford an all-out murder defense.) Can you be arraigned without a lawyer? If that happens, do you tell the judge that you have no lawyer and say nothing else? Do you get to talk to the public defender automatically, or is there a screening process? What really happens after they read you your rights?

2

i don’t know why glitches have cropped into the above. the phrase between the codes should read:
(“just tell us what happened. we won’t be able to help you with this if you get a lawyer…”)

3

IANAL, so I can’t answer all those questions, but I’ve seen enough episodes of Law & Order to get the obvious ones:

Do they hand you the yellow pages and a phone? Do you have to name a specific attorney if you say you want to hire one? Suppose you already have a lawyer, but for whatever reason you can’t reach him? Does everything stop until he turns up? Or can you keep calling lawyers until you wake up somebody who will take your case?

If you ask for a lawyer, everything really can stop until a lawyer shows up. This is true whether you have a lawyer of your own or need a Public Defender.

Suppose you don’t have a lawyer and don’t even know how to find one? Are the cops suppose to give you guidance?

They’ll give you guidance as far as getting you a PD.

Who decides whether you can afford a lawyer, and what standard to they use?

This one is purely a guess, but I’m pretty sure that the person who determines your ability to afford a lawyer is YOU.

Since Public Defenders are not known for being the best defense possible, if you can afford a better lawyer, you will.

(Insert all legal disclaimers here)
D

4

All people have the right to a Public Defender, BTW, regardless of how much money they have. People who have money usually decide to hire a private lawyer, though.

5

From personal experience I can tell you this much.

  1. The cops have to Mirandize you (rights reading) before asking questions. If you’re guilty as hell of something serious, shut up. You’ll only help them build the case.

  2. They have nothing to do with you talking to a lawyer. They are there to arrest you, turn you over to whatever jail is there (usually County), write the initial report to be sent to the prosecuter, and show up in court to testify.

  3. Once in custody, the jailers are the ones that handle the phone calls. I believe you’re allowed as many calls as it takes. I know here, you can call as many times, for free, as you need.

  4. If you can’t get hold of anyone, or don’t have a lawyer on retainer, you see the judge the next weekday, for bond, charges etc. At this point he’ll ask if you have a lawyer. If a PD is needed, he gets the ball rolling, and it’s back to jail till you can talk to him (unless you make bail/bond)

6

Can you please offer a cite which indicates that a police officer is not lawfully allowed to ask you any questions without reading you your rights?

7

In the United States, you can refuse to answer any questions. You can ask to be brought in front of a judge and request a public defender. The judge will have you fill out paperwork and submit information to determine if a public defender should be appointed.

I think it is always best to not answer questions but to remain friendly.

Even if a public defender is denied, you still have the right to not answer questions from the police.

8

They’re allowed to ask you, but if you say something they want to use and you haven’t signed the Miranda paper, it could make it hard for them to use that info, so they do that right up front.

I believe, but am not positive, that if you’re a minor they are not supposed to question you without a parent/guardian present. Not just “minor” but below a certain age. When I did a ridealong with Denver cops, one of them was just slightly bitter about this in a case where he’d arrested a young [alleged] crack dealer, & everything the kid told him was thrown out because he’d signed the Miranda paper without a parent/guardian present—or something like that. I think the kid was also much younger that originally thought, & using a fake ID . . .

9

My father, a now-retired police officer, always told me that if I was ever arrested I should:

  1. Admit nothing
  2. Deny everything
  3. Make 'em prove it
    When I was arrested back in 1992, I was Mirandized twice. Once before they put me in the patrol car and then again at the police station, in front of a video camera
10

Anyone care to offer some actual law that backs up the various assertions in this thread?

11

Well…

http://www.usconstitution.net/miranda.html

http://www.lawinfo.com/legalfaqs/miranda_warning.html

for a start…

12

From your second cite:

is somewhat wrong. The evidence can’t be used directly (i.e. the officer can’t take the stand and testify to it) but if the defendant at trial takes the stand then the otherwise inadmissible evidence can be used to impeach him.

13
  1. There are two types of rights to counsel. There is the “second-tier” Miranda right to counsel. This right only gives one the right to have counsel present during questioning. The police don’t have to question you, and with few exceptions, your lawyer will advise you not to answer questions. This is what refer to on NYPD Blue as “lawyering out.” Lawyering out means breaking off questioning by refusing to answer questions without a lawyer. Of course, Miranda makes clear that one can cut off questioning by simply refusing to answer questions.

Here is a good discussion of *Miranda * and its progeny.

Then there is the Sixth Amendment right to counsel. It includes the right to have counsel present during critical stages of criminal proceedings, the right to hire counsel of one’s choosing, and the right to appointed counsel for those who cannot afford to hire their own.

Hope this was helpful.

14

A Miranda warning is required anytime a suspect is in custody and is being interrogated. If you’re not yet in custody, doesn’t count. If the right to silence and/or the right to counsel is invoked, it must be specific and unambiguous-“maybe I should see a lawyer” or “I’m not sure I should talk to you” isn’t good enough. Your invocation should be something along the lines of “I want to talk to a lawyer, and I don’t want to talk to you until I do.” Your lawyer could be jumping up and down out in the waiting room, but until you make this statement they won’t let him in to talk to you during interrogation.

If you invoke your right to remain silent, all questioning related to that particular crime must stop. If you invoke your right to counsel, all questioning related to all crimes must stop. If you’re ever in that situation, invoke both. The police can attempt to reinitiate questioning at a significantly later time if they “scruplously honor” your request, and theycan question you if you suddenly pipe up out of the blue despite having invoked your rights. Otto is correct; a confession in violation of Miranda can be used for impeachment provided it was at least voluntary-you can’t tell the police you shot the guy and not get called on it when you say you didn’t on the stand. However, if the confession is truly involuntary (e.g., they beat it out of you), it can’t be used even for impeachment.

If you do invoke your right to counsel, the police won’t run out and get you a lawyer. On will be provided for you if you can’t afford one when you appear in court. The court makes the determination as to whether you can or can’t afford one.

15

So I get the Miranda warning, followed by the question “Do you understand?”
What if I say “No” ? English not being my native language, I could easily argue at least that I wasn’t sure about the legal implications of what they said to me.
Any ideas?

16

If it was apparent that you spoke another language, they would (or should) try to get an officer to Mirandize you in your native language. They might also try explaining the rights to you until you said that you did understand. If you don’t understand, you can’t waive your rights, so (theoretically) any statements that you made would be admissible (subject to some exceptions).

17

Well common sense dictates that if you say “no” than you haven’t waived anything. I mean, what’s the alternative. Either you truly don’t understand OR you’re simply not in the mood to cooperate. Either way you haven’t ‘agreed’ to speak about anything. It seems logic to say that IF the police are required to give the warning then it follows that you are required to affirmatively waive those rights before what you say can be used. Otherwise they would simply be required to give you your rights and go from there. No asking about whether you “understand,” no concern about your state of mind or age even.

18

I believe that the police have a book containing the Miranda warning translated into various languages.

19

pravnik, GFactor, and Otto: all right on the money, with the exception of GFactor’s line:

Which I’m pretty sure is just a typo, and he or she meant to say INadmissible.

Since I gather the OP was asking about the actual process:

In Virginia, to pick an example of a jurisdiction with which I have some passing familiarity, if you are arrested you are taken before a magistrate. The magistrate sets a bond and, if you were arrested without a warrant, takes testimony from the arresting officer and issues a warrant.

If you are unable to meet the bond, you must stay in jail until your arraignment hearing, which is typically held within a day of the arrest. You are permitted to call friends, family, and/or a bail bondsman to make bail.

At your arraignment hearing, conducted by a General District Court judge, you are given formal notice of the charges against you. The judge will also advise you of all your constitutional rights. If you are charged with an offense that carries a possible jail sentence, you may be eligible for a court-appointed public defender. The judge will ask you, under oath, a few questions concerning your income and assets for the purpose of determining if you qualify for court-ordered counsel. You will be asked to enter a plea of guilty or not guilty. There are a set of standard guidelines for this purpose - they take your income, reduce it by the amount you pay for housing, factor in the number of dependents, and reach a yes/no on qualification. If you are unable to enter a plea, or do not understand what this means, the court will typically enter a plea of not guilty on your behalf. If you try to plead guilty, the court will usually advise you to consult an attorney first.

The court will also review the bond set by the magistrate and entertain requests to modify the bond. The magistrates tend to set bond based on the offense; the court will look at such factors as your ties to the community, your assets, your employment, and the offense itself in setting the bond. It’s not at all uncommon for a “secured bond” (you have to put up the cash first) to be changed to an unsecured bond (you owe the money if you don’t show) or even a recognizance bond (your promise to show is sufficient).

If you qualify for a court-appointed counsel, the court will either give you the name and number of the attorney who will be representing you, and tell you to contact him, or you will be introduced to that attorney while you’re there. If you do not qualify for an attorney, the court will strongly urge you to obtain counsel before you return.

The court will set a date for the next hearing in your case.

  • Rick
20

That’s correct. Typo. Yale Kamisar, who taught me Criminal Procedure in law school, would kill me. Thanks for the clarification.