Agreed. However the myth/urban legend is out there that you must Mirandize everyone you arrest. I don’t know how many times I get hired/appointed to represent a client and the client will immediately claim that he wasn’t Mirandized so therefore in his mind the charges must be dismissed.
That’s amazing. But of course it was the judgment of the Louisiana Supreme Court that neither “lawyer dog” nor possibly “I want a lawyer, dawg” constituted an actual request for a lawyer, thus confirming Bill Maher’s hypothesis that justice has never been done in any courtroom with ceiling fans.
It reminds me of Trayvon Martin’s friend Rachel Jeantel testifying against George Zimmerman. In the eyes of the jury, her African-American vernacular demolished her credibility.
I believe the reasoning is that maybe you don’t start out as a suspect. Or they might consider you a suspect but not tell you that. Or they might just be going fishing. You could inadvertently say something that turns you into a suspect and then things head south from there.
However, I would think that if literally everyone took this advice then our criminal justice system would grind to a halt, and the legal profession would be laughing all the way to the bank.
I didn’t realize when I posted #22 that this was GQ. Sorry for getting a little political there with the Bill Maher crack, but the facts remain about the Louisiana Supreme Court ruling on “lawyer dog” and moreover, on at least one juror’s testimony on how the vernacular of Rachel Jeantel diminished her credibility.
That decision got a lot of bad press, but the lynchpin of the decision was not the “lawyer dog” comment, it was the conditional nature of the request. He said something to the effect of: “If you all think I did it, I want a lawyer, dog” The request therefore was conditional and he only wanted a lawyer if they thought he did it. Even though the condition was true, case law says that is not enough; a request for a lawyer must be absolute.
IIRC part of the ruling was the request for a lawyer dog was prefaced by “If you think I’m guilty …” so therefore not a postive request for an attorney. Remember, this is also the same country where now you have to say you are remaining silent to get 5th Amendment protection.
And that case got a lot of bad press as well, but it makes sense. If you ask me if I committed a crime and I don’t say anything, it cannot simply be assumed that I am exercising my right to remain silent. Perhaps I didn’t hear you or I am pondering whether I should answer the question or perhaps pondering what my answer will be. Maybe I don’t want to answer that one question, but will answer other questions you ask me.
Instead of making the police become mind readers, the Court held that if you are indeed exercising your right to remain silent, you must unambiguously tell that to the police. I’m unsure why such a reasonable proposition has been dismissed by chippy one-liners.
Others have already correctly pointed out that Miranda only applies to interrogating a witness. To add to that, note that an interrogation only occurs once you are in custody (which is a detention associated with formal arrest) - the cop who comes to your window after pulling you over does not have you in custody, which is why he can ask you questions which can be used against you without first mirandizing you.
Note, too, that Miranda does not apply to spontaneous utterances by the suspect. If a person is put into handcuffs and says, “You got me. The shit is in a bag I hid behind that dumpster”, that’s admissible even if the cops never issued a Miranda warning.
Also, note that there can be an emergency exception - cops are detaining an aggressive suspect who had been armed. As they are putting his arms behind his back they yell, “Where’s the gun?” If he says, “I threw the gun into the river while you were chasing me”, that’s potentially an admissible statement, despite no miranda warning.
I’m going to quibble with this a bit. There’s a concept called the “fruit of the poisonous tree” which stands for the proposition that law enforcement can NOT use improperly obtained evidence to get additional evidence which is then deemed admissible, so it is arguable that the police would not be able to use the gun if they had conducted an illegal interrogation to locate the gun.
Instead, in order to actually use the gun as evidence, police would have to show that they had an independent basis to find it (i.e. perhaps, apart from the statement from Joe, they had already obtained a search warrant for the barn - at that point, the fact that they knew exactly where in the barn to look, because Joe gave an improper confession, would be of no consequence to the admissibility of the evidence).
Separate and apart from the concept of Miranda is the concept of voluntariness - a statement, regardless of whether Miranda was required or given, can only be used if it was voluntarily made. Involuntary statements are those made under threat or coercion. So, if a judge found out that (even after Miranda was given) a cop threatened a suspect with retribution, it would likely be deemed inadmissible due to being involuntary.
Yes, that makes sense. Southern judges aren’t as stupid as you think they are.
…they couldn’t be.
No not even my state takes it that far. I very rarely used Miranda until I was a detective.
Just so everyone understands each state can interpret Miranda(or any other decision) their own way just as long as it’s a stricter interpretation. To go back to the OP in my state we can’t lie, hint, imply or do anything to make the subject think we can or are offering them a deal. If anything like that happens in the judge’s opinion the statement is thrown out.
The lawyer dawg incident couldn’t happen in my state either. Say anything that rhymes with lawyer and the interview is basically over. One case of our the suspect put his hands behind his head, leaned back, looked at the ceiling and said to himself “Do I want a lawyer?” Because he wasn’t immediately reread his rights the rest of the statement was thrown out. Murder case by the way.
One time where the Police can make a deal- sorta- if you are a low level crook and they want you to roll on some other higher crook, the police simply wont finish booking you if you turn CI. If you wanna be a CI, this may be a option.
But in general, the Police cant make a deal, and unless you are a witness ONLY, dont talk without a lawyer.
**Name & Address, maybe DoD (of course Dr lic if it’s traffic related). Maybe a little more ID info if you think it may be mistaken ID.
“I want to speak to my/a lawyer”
" Am I free to go?"**
That’s it.
That may be true in some states, but if so, it’s absolutely ridiculous. Davis v. United States, 512 U.S. 452 (1994) established that the request for a lawyer "[requires] some statement that can reasonably be construed to be an expression of a desire for an attorney’s assistance." It does not apply if a reference is genuinely ambiguous or equivocal. But in the Davis case, the suspect stated “Maybe I should talk to a lawyer”, but when the agents inquired if he was asking for a lawyer, he replied that he was not. That was the key point. Later, he decided he wanted a lawyer after all, and tried to have the previous evidence during questioning thrown out on the basis that a lawyer was not present. This was of course rejected.
But that was not the case here, as I see it. The defendant’s statement, translated into more standard English, was basically this: “If you’re accusing me of committing this crime, then I want a lawyer to defend my rights because I’m innocent”. AIUI, he was being interrogated while in custody as a suspect for that very crime, so ISTM to clearly meet the test of being “sufficiently clear that a reasonable police officer in the circumstances” would have understood that the suspect wanted an attorney (also from Davis v. United States).
I’d rather err on that extreme than on the other.
Having interviewed and interrogated a fair number of suspects before I retired, I concur with Joey P and pkbites. What I would do after reading Miranda was let the suspect know that, should he invoke, we were done. As in, right now. He was going to jail and would likely be there for a few days until a bail hearing could be scheduled. Further, I would pass along to the DA the suspect’s lack of cooperation. This was all true and not a promise of any kind of deal. Most petty criminals don’t think long term and not going to jail that very night was usually uppermost in their mind.
Miranda in narcotics cases wasn’t a big deal because, as stated above, our case was almost always a lock without cooperation of any kind. The cooperation would come later when the defendant was trying to minimize whatever was coming down the pike sentencing-wise. This was a formal process with lawyers and signatures etc. Homicide cases are a different animal. Miranda is taken very seriously as many times all the CSI stuff isn’t enough to ensure a conviction. Especially if there are multiple suspects and you need the cooperation of one to convict another. My very first murder case had three shooters. One is still walking around today (actually in prison for some other shooting). I know he was there but the other two wouldn’t give him up. I’m pretty sure they were afraid of him and rightly so. All three under the age of 18, by the way.
Edit: same state as Loach. “New Jersey. You got a problem with that?”
Well, it’s GQ, so I’ll point out the other side of the argument. Not that I necessarily agree with it.
The courts like to give police bright line rules whenever possible. Bright line rules make it easy to put in the training programs in the academies and can be used by a policeman on the beat of a detective with reasonably solid assurances that if he/she follows the bright line rule, then the evidence will be admitted. He/she further knows that if the bright line rule is not followed, then the rights of the suspect have been violated. It also puts people who care to know the law on absolute notice of what steps they must follow to ensure that their rights are protected. They know, for example, if they say, “I demand a lawyer!” or “I refuse to answer any questions you ask me” that any police officer who is following the law will respect these statements. All fair on both sides.
So one of these rules is that a request for an attorney but be absolute and not conditional. We don’t want to have to make a police officer guess what the subjective intent of a suspect is in the middle of a murder investigation. We don’t want ten different detectives acting in different ways based upon the same statement. We value consistency.
If the “lawyer dog” suspect wanted a lawyer, it was trivially simple to ask for one without the precondition. Nobody beat on him or otherwise prevented him from making the simple statement “Get me a lawyer now!”
But as with any bright line rule, you have absurdities at the margins. Why can I go 70mph on the expressway, but not 71? Why can I buy liquor the day of my 21st birthday, but not the day prior? 71mph is not really in any way more dangerous than 70mph and a person did not mature in one single day to make his ability to handle liquor more responsible than the day prior. But the bright line rules exist because otherwise we would have to examine every individual and there could be no real enforcement.
Likewise, in the “lawyer dog” case, I agree that it would have been extremely simple for anyone to determine the extent of his request. “If you think I’m guilty, I want a lawyer.” The officer could easily determine that “Yes, I think he is guilty, so I should give him a lawyer.” But how do you apply that rule in other circumstances? What if the situation was slightly different? What if the police officer had it narrowed between the “lawyer dog” suspect and one other?
Should he have to look into his own mind and parse the meaning of “if you think I’m guilty”? What if he thinks that the suspect may perhaps be guilty, but he’s not sure of it? Should the admission of a confession hinge on such an absurd distinction?
Of course, you could be like New Jersey as mentioned above and have a rule that anything that rhymes with lawyer triggers the protection. If you do that, it comes at a social cost. Maybe you were going to get a murderer off the streets but your prophylactic rule let him go free to kill again?
It’s a difficult balancing act, but I don’t think that having a bright line rule is a bad thing, even if in some cases it leads to silly results.
You would tell the DA that the suspect wasn’t cooperating simply because the suspect asked for a lawyer?
It’s not so much that someone would be punished for asking for a lawyer as that they would be rewarded at sentencing for being forthcoming. I know that is a distinction without a difference, but the law seems to see it that way.
For example, I had a case several years ago where a man came forward and admitted molesting (on many occasions) his step-daughter several years prior. Nobody had made any allegations against him, but he found religion and decided that he must accept responsibility for what he had done. His step daughter remembered it, but testified that she had no intentions of ever telling anyone. He walked into a police station, waived all of his rights and confessed to everything.
He pled guilty at his arraignment and was given probation with no prison time. Do you believe that he should have been sentenced to the same amount of time as someone who denied the allegations and was found guilty by a jury?
Based TV I’ve seen ( 
), no. But would he have been given the same sentence if he DIDN’T waive his rights, asked for a lawyer, and THEN pled guilty?
Well, no. In the whole (real) scenario I outlined, the guy would never have been found out had he not came in and confessed. It would seem unbelievable that he would walk in and then ask for a lawyer. I mean, the cops wouldn’t have even known what he was there for and the lawyer he was appointed would have told him that he was crazy and to go the fuck home and get his forgiveness from a preacher instead of exposing himself to prison time.
But, my digression aside, the law seems to say that it is okay to give you leniency for cooperation, but forbids punishing you for an exercise of your rights, even though both of these things are two sides of the same coin.
But it seems to me that telling the DA you weren’t cooperating IS punishment for exercising your right to a lawyer.
And I don’t disagree with you. But how is that different from saying that you were very cooperative so take it easy on you?
I’m in the middle of writing an appellate brief in which I am arguing that a judge found a fact of consequence, i.e. violence, which increased my client’s penalty (bad) while the other side is arguing that the judge did not find a fact, i.e. that the crime was non-violent, which would have mitigated his punishment (allowable).
I have read hundreds and hundreds of cases and there seems to be no real distinction between these two and I’ve concluded that no real distinction exists as they are identical.