Hah. I knew you damnable Michigan grads were of no use. Not that I have anything against the University of Michign Law School. Oh wait…
Former Prosecutor, current public defender here.
Generally, most legal shows get Miranda wrong, for the most part. Few police if any, in my experience, read you Miranda at arrest. I believe TV and Movies use the Miranda warnings as shorthand for “this character is under arrest”. In every state I’ve practiced in Miranda is only required if two elements are present:
- Interrogation - in other words, the police are asking you questions, and
- Custody - you have to be in a situation where a reasonable person would believe they could leave.
Most police in my Jurisdiction (Wyoming) get around Miranda during questioning by telling the suspect that they can leave at any time. No custody, no custodial interrogation.
As to right to an attorney, everyone has the right to one, but not everyone has the right to an attorney appointed at public expense. If you invoke your right to an attorney, any questioning has to cease until your initial appearance before a judge or a magistrate. At IA, a defendant needs to either 1) say that they will proceed pro se (meaning without a lawyer), 2) inform the court they will be hiring an attorney, (if a defendant doesn’t know who yet, the court will expect the hired attorney to file an entry of appearance before the next hearing), or 3)requesting a Public Defender. Every state I know requires a showing that the defendant is indigent before getting a Public Defender, often by filling out an affidavit of finacial ability and swearing to it at Initial Appearance.
Dahnlor wrote: Since Public Defenders are not known for being the best defense possible, if you can afford a better lawyer, you will.
I have been very impressed by the Public Defenders I work for, and my opponents when I was a Prosecutor. Public Defenders, especially in larger communities are overworked and underpaid, and often get the worst cases, but have always been professional and very skilled. In my personal opinion, (and this is from someone who has also worked as a private criminal attorney) what you pay for with many private attorneys is a lot of expensive hand holding. Also, very few private attorneys work exclusively on criminal cases. I know there are exceptions, however.
Here in Wyoming, there are very few criminal attorneys that do not have contracts with the Public Defenders office. In other words, the same attorney your cellmate is paying out the nose for is likely to be appointed to you for 1/20th the price. I do not know of a single defense attorney in the State of Wyoming that works primarily in Criminal Law who isn’t at least a part-time Public Defender. I understand that Wyoming isn’t typical, but the stereotype of the Public Defedner as a second rate attorney is a major pet peeve of mine.
“That’s correct. Typo. Yale Kamisar, who taught me Criminal Procedure in law school, would kill me. Thanks for the clarification.”
No, you’re not a cop. Unless you’re a cop, he wouldn’t advocate killing you.
I think you mean a situation where a reasonable person would believe they could not leave.
This is turning into the “typo that reverses the meaning of the sentence thread.” 
It’s interesting. The police seem to think of it the same way. So if they stop you during the investigation of a crime, they don’t read you your rights, instead waiting until you are “arrested” as opposed to in custody. Giving rise to all sorts of inadmissible evidence. A good example of this is the bus cases [citation omitted]
Indeed, this is what Miranda and its progeny require. And of course, only the most savvy and brave customer will say, “ok, I’m leaving.” But this is the real test. If they say you can go, you should really be able to go.
Dahnlor wrote: Since Public Defenders are not known for being the best defense possible, if you can afford a better lawyer, you will.
I have been very impressed by the Public Defenders I work for, and my opponents when I was a Prosecutor. Public Defenders, especially in larger communities are overworked and underpaid, and often get the worst cases, but have always been professional and very skilled. In my personal opinion, (and this is from someone who has also worked as a private criminal attorney) what you pay for with many private attorneys is a lot of expensive hand holding. Also, very few private attorneys work exclusively on criminal cases. I know there are exceptions, however.
Here in Wyoming, there are very few criminal attorneys that do not have contracts with the Public Defenders office. In other words, the same attorney your cellmate is paying out the nose for is likely to be appointed to you for 1/20th the price. I do not know of a single defense attorney in the State of Wyoming that works primarily in Criminal Law who isn’t at least a part-time Public Defender. I understand that Wyoming isn’t typical, but the stereotype of the Public Defedner as a second rate attorney is a major pet peeve of mine.
[/QUOTE]
It is important to distinguish between public defenders and court-appointed defense attorneys. A public defender is someone whose mission is to defend poor people accused of crimes. They generally must compete for the job in some fashion, and tend to be very qualified, if overworked. Court appointed-attorneys are attorneys who apply (or are forced–don’t know if they do this anymore, but they used to) to receive appointments in criminal cases. When a criminal defendant applies for a lawyer, the court picks a lawyer from the list. The lawyer is paid for each case on which the lawyer works. In Michigan, about ten years ago, the Supreme Court heard a case claiming that the fees paid to court-appointed lawyers was so low, that defendants were not getting effective assistance of counsel. Lawyers got something lik $35 for half a day of trial. It encouraged lawyers to become “waivers and pleaders.” Waivers and pleaders would encourage their clients to waive all pretrial hearings and accept a plea bargain, even if the bargain, well, wasn’t. Anyway, court-appointed defens lawyers tend to have less imposed quality control than public defenders. I have seen some bad ones. But I have also seen some great ones.
Hah, this is turning into a Yale Kamisar thread. I guess you’re right, though.
Oops, you’re right - my bad.
Good point - here in Wyoming, it’s all the same though - the Public Defenders Office get all indigent cases and is in charge of “farming out” conflict cases.
In your experience, how many people walk out in the middle of an interrogation? How many of them, as they’re leaving, get arrested?
And while we are at it, how many police officers would admit refusing to let the person leave, if it happened that way?
Well…I’ve a question. What’s the point of Miranda law, exactly. The part about having access to a lawyer I clearly understand, but what about the “keeping silent” part (there’s no such thing here…anyway statements made orally to the police don’t matter that much)?
I mean, it’s not like the police could force you to answer their questions (well…except by torturing you, I suppose, but if we’re going there, I suppose they wouldn’t have any issue with not respecting the Miranda law, either). Whether or not you’re told you can remain silent, it’s obvious that you can. So, what are, in theory and in practice, the motives for the existence of this law? What is it suposed to achieve, exactly? (once again I’m refering to the silence part, not to the access to a lawyer part).
And also, is there an equivalent to this Miranda thing in other countries (the UK, for instance, where the legal system is quite similar)?
In my experience, a cop that will out-and-out lie on the witness stand is rare. Certainly cops will shade the meaning of the facts they report, but imagining a police officer in a suppression hearing simply denying that the accused tried to leave and was prevented from doing so, when that’s excatly what happened, would be very rare.
The general idea is that the Fifth Amendment protects your right to remain silent, but that this protection isn’t meaningful unless you’re aware of it, and when you’re in custody, an inherently coercive situation, you may well feel that you have no choice but to talk. So, as a prophylactic rule, any statements you make in custody are inadmissible unless you’ve been explicitly informed that you have the right to remain silent.
Why would you think statements made orally to the police don’t matter that much? If you confess to the crime, the police can then testify that you confessed to the crime – even if you recant before anything is taped or written down. That’s a very significant piece of evidence at trial, as a general rule.
- Rick
In Miranda the Supreme Court found that custodial interrogation is inherently coercive. In other words, they did not believe that people found it obvious that you can remain silent. That is the basis for Miranda. You can read more about it at the link that I posted earlier.
Here is a discussion (I’m not sure how authoritative it is) of self-incrimination law in some european countries:
http://rechten.kub.nl/koops/casi-faq.htm#2.9.
And here is one about self-incrimination law in Israel:
Comparative law is not my field, so this is just a starting point.
This seems too easy an end-run for the police to make unless I am misunderstanding it.
Hypothetical Example:
The police ask me to come down to the police station to answer some questions regarding a recent crime. I am not under arrest, just being a helpful citizen. The police make it clear I am not under arrest and am free to leave any time I like. They start asking me questions and over the course of the questioning I get more and ore uncomfortable that I am digging myself into a hole I won’t like. Considering I was told I was free to leave I take them up on that and walk for the door telling them I am through answering any more questions. Before I get out the police inform me I am under arrest and Mirandize me.
[/end example]
Maybe it is just me but it seems the police intentionally skirted the spirit of the law by doing the above. Essentially extract as much information from me as they could before I was told I was a suspect and any information I was giving might be used to lock me away. Upon calling them on it they then go ahead and perform the arrest (for the sake of argument assume the police intended to arrest me all along).
ReverseCowgirl suggests that this is SOP in Wyoming so this hypothetical would seem to bear relation to reality in at least one state and I would bet many others as well. Just tough luck for the defendants that the police know how to play the system?
What you describe, Whack-a-Mole, is perfectly legitimate.
The whole point of Miranda and its progeny is to ensure that the police do not get confessions that are the product of coercion, but rather that of free will. If you knew you were free to leave at any time, and remained to answer questions, then whatever you said is presumptively the result of your own free will.
In Hoffa the Supreme Court made clear that a defendant has not right to be arrested or charged at any particular time. And sadly, that logic applies here. Yes, the police will do what they can to get a confesion out of a suspect. And yes, they may follow the letter of Miranda, but not the spirit. The good news is that a defendant can still argue that a confession was coerced, even though Miranda the police have followed Miranda.
I have no doubt what you say is true so this is not arguing that you are wrong but rather that I think it should be wrong.
For the sake of argument assume I am completely innocent. The police ask me to come answer questions and me, trying to be a good citizen, go in to help them and answer questions. In reality the police feel I am the person who committed the crime and they are simply trying to stack the deck against me…they already fully intend to arrest me. So there I sit innocently answering questions. It is NOT my free will to answer those questions with the result being putting me in jail. I am misinformed as to the purpose of the questioning and may be inadvertently incriminating myself without knowing I am doing just that.
Basically what this all tells me is NEVER cooperate with the police. Be polite but otherwise shut-up and don’t answer a thing they ask you beyond maybe giving them your name.