Since the bulk of my knowledge of law enforcement is based on TV, I thought I’d throw this one out there for the (hopefully) better informed.
If you’re a suspect being interviewed by the cops, when you say, “I want a lawyer” is that the absolute end of things for the police? Can they ask you any questions at all (“So, how 'bout them Yankees?”) Can they keep talking to you, not asking questions precisely, but maybe hoping to goad you into some kind of statement? Would any confession you made before your lawyer got there be valid?
Ehh, this isn’t legal advice. You should consult an attorney, I’m not responsible, etc. <-- Disclaimer.
Once you ask for an attorney, all interrogation must cease until your attorney is present. But there are some caveats with that.
First, you don’t have Miranda rights unless you’ve been taken into custody/arrested. If you’re just being “interviewed,” you can cut off questioning anytime you like. But you don’t have a “right” to an attorney…legally speaking, it’s just a conversation between you and the cop(s). You can just say “I’m leaving now” or “Please leave. Now.” and they’ll either go, or effectively have you in custody, and Miranda will apply. That was probably about as clear as dirt, sorry. Y
Second, yes, they can chitchat with you. They can ask processing questions (name, address, etc.) and talk about the weather and whatnot. The rule here is that they can’t talk (or take actions) that they know are REASONABLY LIKELY to elicit an incriminating response from you. So they can say, “Nice weather we’re having, huh?” but they can’t say “Nice weather for a HOMICIDAL RAMPAGE, HUH SPORT?!”
Third, if you should volunteer anything during…well, any of this, all bets are off. Unless you have a good defense lawyer it’s admissible.
Fourth, the police might already know that charging you is pointless. Maybe the evidence is fouled, maybe they haven’t got a warrant, or whatever. Or maybe if they know that you’re just a little fish, they’ll decide to keep going. Your testimony won’t be admissible against YOU, but they know the case against you is hosed and it may lead them to bigger things. I’m not saying this happens alot, but it happens.
Hope that helps.
[QUOTE=Grossbottom]
Ehh, this isn’t legal advice. You should consult an attorney, I’m not responsible, etc. <-- Disclaimer.
Clarification: I’m not in the dock! I’m just curious, having seem my share of TV detectives throw their hands up in the air once the suspect requests a lawyer.
Though that sounds simple, it can be tricky, and is constantly being refined by the courts. For example, if the police have pulled your car over, are you in custody? If someone at work tells you to go to Conference Room A, and when you arrive you are met by three detectives, are you in their custody? These situations have nuances that courts review closely. Generally, if a person reasonably believes that they are NOT free to leave, then they are in custody. But, there may be times when YOU think you can’t just saunter off, but legally you can; it can get murky.
As GrassBottom pointed out, after you invoke the “I want a lawyer” clause, the police can still talk with and near you. But some cases have ruled against police if they engage in conversation amongst themselves within your earshot that may reasonably elicit a response from you, such as “say, Detective Swartz, where do you think the killer hid the gun? In a Dumpster? Say, behind the Kreaky Kreme?”
As you say, there are fine nuances to all this. However, for Miranda to apply, it requires custody that is the functional equivilent to arrest. Just being detained and not free to leave does not trigger the requirement for Miranda warnings.
If you have been given Miranda and say clearly, “I want to speak to a lawyer”, all questioning must cease. Any incriminating statements made after that point will almost certainly not be admitted at trial.
I don’t have anything very concrete to add here, but I thought I’d just chime in another question here…
What exactly happens to get your lawyer there after you say you want one?? (By the way, info for both USA and Canada would be appreciated here if possible.)
I have the distinct impression that if you want a particular lawyer (or even maybe just a decent one,) you have to arrange that yourself with your phone call. Do you ask for your phone call at the same time as you say you don’t want to answer any more questions before speaking with your lawyer?
Presumably if you don’t want to make arrangements yourself, the police can arrange to have you meet with a harried and overworked assistant public defender, yes?
Yes. At the very least, the PD can ensure that you get through arraignment and a bond hearing with decent representation, and then you can obtain private counsel.
Please note that if it turns out your financial situation is such that you are not eligible for public defense, you WILL get a bill for those services.
It’s my understanding, from having one friend who was arrested once, that dialing someone up in the phone book would suffice, when you get your phone call. Alternatively, whoever you’ve called should get you a lawyer.
On NYPD Blue, it seems that “lawyering up” is rare, and that confessions and pleas are far more likely. I know that most things are handled by plea in the real world, but do the accused really not ask for a lawyer until they’ve hung themselves?
It was always my impression that everyone was entitled to a public defender, and that people with more money at their disposal only declined to use a public defender because they wanted better representation.
Is this true in all jursidictions? How does the public defender’s office determine the cutoff for those who should be billed?
a) the former–being detained by a number of cops for questioning, eventually released after they’ve questioned you; not treated as a suspect, only as a witness or person with valuable information;
b) the latter–being held in a cell; treated as a suspect in the crime.
IANAL, IANAPO, just guessing.
Again, standard disclaimers of this NOT being legal advice…
Also, please remember, we are discussing the fine nuances of Miranda…
“Functional equivalent of arrest” (mind you, I haven’t practiced criminal law in like 5 years) is an objective standard where the reasonable person in the “suspect’s position” (put into a frame of reference where one would reasonably/objectively that the person is a suspect) believes that his freedoms have been restricted to a point similar to or associated with a formal arrest.
(The freedoms involved is most notably centered around the freedom to move. For further reference see 4th amendment right violations regarding illegal arrest)
As Badge points out, there are nuances. A cop can tell a potential witness to, “stay right there, I need to talk to you,” or, “don’t move, don’t leave, or you’re going to be sorry (implying some sort of further action on the cop’s part, usually physical).” Is this person under arrest, in custody? Without more, and given what I’ve stated, probably not. This person is a potential witness, and the cop is just asking questions. He doesn’t have to be nice about it. This is true even if the person in question is, in the officer’s mind, the prime suspect.
Is this an arrest? Can the person leave or is he in custody? Does he have to ask for a lawyer? Can he be searched without his consent? It is a bit of a gray area that must be examined on the facts present. Note, that the officer can prevent the person from leaving, and induce a search without consent, without having to tell the person that he is under arrest. However, at that point in question, I believe in does become clear that the person is under arrest.
The police can have you in ‘custody’ on the basis of reasonable suspicion. The custody can’t last forever, but it can last long enough to determine whether probable cause exists for search/arrest.
They can only arrest with probable cause, with probable cause being a higher standard of proof than reasonable suspicion.
Ex. - Alan is driving badly. While technically not breaking any laws, Alan’s driving is erratic enough to make a nearby police officer want to pull him over and see what’s up (reasonable suspicion, custody, and Alan’s not free to go). Upon talking to Alan, the officer sees that Alan’s eyes are bloodshot, there’s an open bag of Cheetos in the passenger seat, and there’s a lingering smell of pot in the car (probable cause, custody and search, Alan definitely not free to go yet). After tossing the car, a bag of pot is found in the glove box (probable cause, arrest, Alan goes downtown).
So reasonable suspicion to detain a suspect for a little while (effectively custody), but probable cause to arrest (and retain custody for as long as needed to adjudicate the issue).
I can speak with authority only for Virginia, but I would be stunned to learn of any jurisdiction that provided public defenders to everyone without charge, even if their finances were such that they could easily pay.
In Virginia, the court makes an inquiry, under oath, of the accused’s assets and liabilities, and simply consults a chart to determine if he qualifies for assistance.
You gotta be nearly nearly flat broke with zero income to be eligible for PD representation beyond the initial appearance in court. That info is determined in an interview before your initial appearance. (btw If you are eligible, you still have to pay the state a nominal amount for PD representation.) And, just my opinion, but as far as quality reprentation for most minor criminal matters, unless you’re willing to spend OJ money on a Johnny Cochran defense, the PD lawyers are as good as you could ask for. After all, they’re in the courtroom all the time, specialize in crim law, know the DAs and judges, etc.
In addition, in many states, you will receive a bill for services if you lose your case, regardless of your financial position. Apparently, the guilty are not entitled to a PD at no charge, as their rights are less deserving of defense. This has been upheld on appeal, so it must be fair and just.
The Sixth Amendment does not guarantee anyone a free lawyer.
Gideon v. Wainwright, the seminal case on assistance of counsel, stands for the proposition that anyone who is too indigent to hire a lawyer cannot be guaranteed a fair trial unless counsel is provided for him for the trial. It does not forbid charging him – it simply says that he may not be forced to proceed without a lawyer even if he can’t pay. Just like emergency medical care: people are not turned away from the hospital doors if they are in grave medical straits, but the hospital is free to charge them for the care they receive. In most cases, of course, it’s the “can’t squeeze blood from a rock” syndrome; the people in question are simply judgement-proof and can never pay.
No person is forced to undergo trial unassisted by counsel, even if they are penniless. But having received the benefit of those services, such a person may be charged for them if found guilty.
And lest you think this is simply another Bricker hard-hearted Republican dismissal of the poor, I’ll remind you that I spent years as a public defender myself, toiling away for the benefit of those unable to pay me.
I've been a public defender for 17 years (and everyone who implied that I'm less than competent can kiss my grits). I can tell you that it never ceases to amaze me how many people do confess. The interrogator usually starts out with softball questions, and the suspect gets comfortable, then the questions get harder, but it's hard to stop once you've started talking. The worst are the ones who think they're smarter than the police, but who have trouble telling the same story for 10 minutes at a time.
In Georgia, the police are allowed to use deception, up to a point, to question a suspect. They can imply that they have evidence they don't have, for example. they can say that a co-defendant has ratted the suspect out when that hasn't happened. There are limits, though- there was one case where the defendant beat up the victim, who died later at the hospital. The police started questioning the defendant, who initially denied the beating. The police told him that the victim was in the hospital and was recovering. Defendant admits to the beating, his statement was admitted at trial, the appeals court reversed, saying that this was going too far in the deception area.
It does happen a lot- just like people consenting to searches they don't have to consent to.
