If we have learned nothing from television we know that if a suspect is not read their Miranda rights they can get off scott free. Right?
I am actually guessing this is not the case, suppose a cop was areresting another cop, who would clearly know their Miranda rigths, would the Miranda speech still be necessary? In other words if you can prove that the suspect knew their Miranda rights (a cop, a lawyer, a judge), then they do not have to be informed of them?
I would think you would especially want to do everything by the book when arresting a lawyer.
Miranda isn’t necessary for an arrest or a conviction. It is only necessary if you want to use material gathered from questioning as evidence. That said, you read them to everybody, cops or no. Never take chances.
Wrong. Miranda warnings are given in order to be able to use the defendant’s statements (made after the warning) against him in court. They do not have to be given at all, and in many cases, are irrelevant, because there is plenty of evidence to convict without relying on any statement made by the Defendant.
Example: A car seen weaving, running a stop sign, is pulled over. Officer detects a strong smell of alcohol on the driver. Gives a field sobriety test–horizontal gaze, one legged stand, heel/toe walk…all three failed. Officer then arrests driver, takes him to jail where a breathalyzer is properly administered, machine properly calibrated, operator properly certified, etc. Driver blows a .250 on the machine. Miranda warnings never given. Entire incident is on video. Any statement the Driver may make is irrelevant. All the evidence needed to convict already exists. Driver will be found guilty, and likely laughed at if he argues about Miranda at the trial.
IANAL but it is my understanding that if the police are not going to question you after arresting you, the reading of your Miranda rights is not necessary.
Wrong.
In fact Miranda, who prompted the Supreme Court ruling, was still convicted at a second trial despite the Supreme Court ruling which merely threw out his statements (enough other evidence existed for a conviction).
The police also do not have to Mirandize you unless they intend to question you. If the cop sees you robbing the old lady the cop can arrest you with no Miranda warning. The police have enough evidence to convict you.
The Miranda warning is merely there to advise a suspect of their rights. According to the court you have to explicitly tell the police you want to remain silent. If you don’t and give up evidence it can still be used against you in court.
It is not simply about the right to remain silent. It contains the part about having a right to an attorney. It is also an important part of procedure for the police to determine if a person can understand English. Even if otherwise not relevant, it’s absence can be used as an indication of police acting in bad faith, or incompetently (but maybe not with any success).
“You have the right to remain silent. Anything you say or do can and will be held against you in the court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?”
What about the right to a lawyer though? That is also part of the Miranda warnings. Could a suspect claim he didn’t know he was entitled to a lawyer?
If they want to question you they have to Mirandize you.
If you do not explicitly ask for an attorney or assert your right to remain silent then you get no attorney and anything you say can be used against you.
If they do not want to question you then they need not get an attorney for you (I think…not sure). Not sure if you are entitled to a phone call (I would think you would be).
I presume an attorney is on hand during an arraignment and the court will see to getting you an attorney for trial.
For questioning you are SOL unless you assert your rights.
My overall question is more theoretical than practical. If a suspect was not read their Miranda right, but it was known by the arresting officer that they obviously knew their Miranda Rights, say a fellow cop, and the suspect did nknow their Miranda rights, then is that OK?
No. The jurisprudence behind Miranda is that it is a “prophylactic rule” designed to protect your right against self-incrimination at trial. It does this by doing something the law rarely requires: the police must affirmatively advise you of your rights. The default rule is that citizens are presumed to know their rights. (Thus, the Supreme Court has ruled that cops do not need to advise you of your right to refuse when they request your consent to search.)
It is inconsistent to say, in light of this rationale behind Miranda, that there are nevertheless certain professions that may be held to know what their rights are and therefore the application of Miranda’s prophylactic rule may be suspended. Just as you couldn’t say that because someone had been Mirandized before, they need not be Mirandized ever again.
Not sure either, but apparently the police create a mess if someone asks for an attorney, and is unreasonably denied one under any circumstances. I think the phone call requirement is state level, so some states may not have it.
Not sure about the arraignment either, but at trial you need the judge to acquiesce to not having a lawyer.
This is correct. An attorney need not be provided during custody, although if one had been requested, no interrogation may occur unless one is provided. The Sixth Amendment’s right to counsel (and note this distinction: Miranda is based on the Fifth Amendment’s protection against self-incrimination) applies as soon as judicial proceedings are instituted against the accused (indictment, criminal information, arraignment, etc.). Interrogation is not a judicial proceeding and so the Sixth Amendment does not afford the right to the assistance of counsel.
Interesting. Based on Oakminster’s summary, I conclude that this is an area where the Canadian right to counsel appears to be stronger than in the US. Here, when the individual is taken to the police depot, before they can be required to blow, they must be given the opportunity to consult counsel. If they’ve not been advised of the right to counsel, or not given the opportunity to consult counsel (by telephone, in private), then there’s a very good likelihood that the the results of the breath test would be excluded in the charge of over .08.
The Crown could still use the evidence of bad driving to support the impaired driving charge, since that occurred independently of the deprivation of counsel, but the impaired charge is usually harder to prove than the .08 charge.
If you want to use the confession from the suspect after you arrest him, then you better mirandize him. Otherwise, you are going to have to use other evidence.
A friend who is a sheriff’s deputy told about a case where a fairly new deputy was Mirandizing a fairly experienced criminal, tried to do it from memory, and made mistakes. The arrestee corrected him, and told him the correct wording. They proceeded to get into an argument about it, with the deputy eventually pulling out his Miranda card – and the arrestee pulling out a business card from his lawyer, with the warning (and instructions) on the back of it! Both cards agreed, and settled it. But then the arrestee insisted that the deputy had to start over at the beginning, not just continue from where he had the words wrong. So they argued about that for a while. Then the deputy said it all over; the arrestee said ‘I refuse to say anything without my lawyer. Except that you are a lousy deputy, and next time I demand to be arrested by a deputy who knows what he’s doing!’
All of this caught on the dashboard camera, and provided hours of enjoyment for the other deputies in the department.
Yes and no, because in the US, if the defendant requests it, counsel has to be present during questioning. In Canada, that’s not the case, and the police can question without counsel being present. See the Canadian Supreme Court decision in Trent Terrence Sinclair v. Her Majesty the Queen.
In that case, Sinclair was arrested for murder, and spoke to his attorney on the telephone right after his arrest before he was questioned. He was then questioned by the police for several hours, during which time, he said he wasn’t going to answer any questions, and asked for his lawyer to be present. This was refused, and the police kept on questioning him, until he confessed to the murder. They then put him in cell with an undercover officer, and he confessed to that officer, then he took the police to the place where he was accused of the crime and reenacted it.
The Supreme Court ruled that counsel doesn’t have to be present during the interview, so long as the defendant has had the opportunity to consult with counsel, unless there are “changed circumstances” so that “the choice faced by the detainee has been significantly altered”.
There’s the decision:
http://www.canlii.org/en/ca/scc/doc/2010/2010scc35/2010scc35.pdf
I’m going to speculate no. The fact is that many police officers read the suspect his Miranda rights off a little card. They do this so that a suspect can’t later argue that the cop got the rights wrong.
But that would leave an out. A police officer could argue that he doesn’t have his Miranda rights memorized - he reads them off a card each time. So if the officer who arrested him didn’t read him his rights, he may not have remembered them correctly.
A lawyer could make the same claim - “I don’t have the law memorized. I look it up when I need to know what a law says.”
Yes, I’m aware of that decision, Captain Amazing. i was referring to the specific drunk driving example given by Oakie. The Canadian right to consult counsel includes situations where no interrogation is in issue.