McNeil concerns a defendant who signed a Miranda waiver and confessed to a previous crime for which he had been represented by a PD at a bail hearing. The facts of that case aren’t even similar to the hypothetical I presented, or to the facts in the OP’s post. Here we are considering a non-custodial police inquiry where the defendant’s attorney is present and attempting to advise her client, when her advice is interrupted because she is forcibly removed by police.
Your assertion is overly dependent on cites. Cites are one way of advancing a legal position, but not the only. They are helpful when the law and facts are the same or similar. When the law and facts or not the same or similar, they can guide us but are not necessarily determinative. We have to argue that a certain precedent (cite) applies b/c the legal principle it settled is the same or similar in the present case.
I have not provided you a cite for the circumstances in the present case b/c I don’t believe one exists. I have never heard of a case with this set of facts. Have you? If you have, you can provide the cite, since you seem to think a reasoned legal position without a cite is fatally flawed. The cites you’ve provided do not speak to the circumstances of this case, or to my hypothetical. Therefore, current case law is not clear on this issue.
You may be right that I’m misunderstanding General Questions vs. Great Debates. I’m new to this forum and am still learning the etiquette. The OP’s question was not “What cites support the position of…” Rather, s/he asked “What COULD (emphasis mine) the police be charged with… and how is it NOT a violation of the defendant’s or public defender’s civil rights?” This question solicits the advancement of many different positions. It concerns me that your tone and word choice is stifling dissent (“Just… just stop.”). This has an effect of intimidating, shaming, and silencing debate. Maybe this OP should have posted in Great Debates b/c it being in General Questions presupposes this is an answerable question with one right answer. The fact that this thread has been filled with posts from attorneys who disagree with each other demonstrates that these facts are so unique as to require contemplation and debate.
Btw, the attorney in question has filed a complaint with the Office of Citizen Complaints- you can read her assertion of the facts in the complaint.
Right. If you see me on the street, you can walk up and start asking questions. You can take a picture of me in a public place no matter if I agree or not. The police can do the same. Likewise I can choose to answer those questions, pose for pictures, or refuse to talk and cover my face.
However, unless they have an articulable suspicion that crime is “afoot” they may not detain me in any way or require that I assist them in their investigation. They certainly cannot require fingerprints or blood.
Even if they do suspect that crime is currently “afoot,” they may only: 1) conduct a light patdown of my outer clothing to search for weapons, and 2) must only detain me long enough to confirm or dispel their initial suspicion.
I do not have to assist them in confirming or dispelling their suspicion, but I may not interfere with that investigation. During the detention, I may not run away, attempt to hide evidence, throw a punch, or lie to the investigating officer. Remaining silent, refusing to provide ID, or otherwise not assisting in the determination of whether I committed the crime may act to confirm their suspicion, but contrary to some police officers, is not an obstruction of their investigation.
This whole thread has progressed more in GD (or at least IMHO) territory than GQ territory. Perhaps that is as it should have been all along. Maybe this thread should get moved there. (I won’t be the one to report it to the mods since I haven’t actually, y’know, participated here. I’ll leave that as an exercise for someone more involved in this thread.)
Who knows? It’s all a great mystery. The Supreme Court may decide that Miley Cyrus needs to be incarcerated as a result of this event, just be sure. After all, some of their decisions are 5-4.
ANd if Law & Order, our font of wisdom on legal matters, is to be believed- it is not at all unusual for people who have a lawyer on retainer to have that lawyer present and interrupting the client or police during non-custodial interviews… So presumably the lawyer has the right to be present and speak instead of the client, object to unlawful acts or statements by the police, etc.
McNeil, if I read it right - was about a person who had a PD for charge A. He was interviewed in jail for unrelated crime B and several times over the course of more than one day both signed his Miranda waiver and talked to police. It was only after he had confessed and the matter came to trial that his (new?) lawyer tried to have the interviews excluded.
Even I, arguing strenuously for legal representation as a right, have to agree the SCOTUS was quite logical, fair, and accurate in saying that having a lawyer once upon a time for something different does not mean the police can never approach you again; nor that there’s a buyer’s remorse clause for Miranda waivers. If anything, a guy who has had a lawyer probably should know better than to talk… but they do.
It was in this context that SCOTUS said you had to specifically ask for a lawyer, not in the context of a lawyer standing by your side telling police they were your lawyer. By that logic, every time the police were interrogating someone and wanted to change the subject, they could move the prisoner to a different room away from his lawyer and hope he didn’t ask for his lawyer all over again.
My question is why not? If it is not custodial and therefore entirely voluntary then why shouldn’t I be allowed to have anyone I want to help me out whether a lawyer, smart friend or neighbor that watches a lot of L&O?
Because it’s non-custodial the police can set the terms. They can say, “we want to talk to you, but you can’t have your lawyer present,” and you can say “in that case, fuck off.”