How To Defend Yourself With The Miranda Rights Shield – Colorado Criminal Lawyer Series
By H. Michael Steinberg Denver Colorado Criminal Defense Lawyer – Email the Author at email@example.com
How To Defend Yourself With The Miranda Rights Shield – Colorado Criminal Lawyer Series While the Miranda rights have become so familiar to us – little children can recite them – they are one of the most misunderstood rights in the criminal justice system.
This article explores the assertion of the rights – how and when that happens and how the courts respect the assertion of those rights depending on the fact patterns of the individual case.
Understanding When You Have “Waived” Your Miranda Rights
A Knowing and Intelligent Waiver
If you give up your Miranda rights – it is called “waiving” your rights. A waiver of your Miranda rights must be “”knowing and Intelligent.” The waiver must be an “intentional relinquishment or abandonment of a known right,”
“Knowing” means the suspect must be “correctly informed of his rights and the consequences of waiving them” and law enforcement has the burden – not the defendant – of proving a knowing waiver through direct evidence. Here they are –
The Right to Remain Silent: The suspect must be informed of his Fifth Amendment right to refuse to answer questions and remain silentt.
“Anything You Say . . . ” The suspect must be informed of the consequences of waiving his rights; e.g., Anything you say may be used against you in court.
The Right to Counsel: The Miranda right to counsel has three components:
the right to consult with an attorney before questioning begins,
the right to have an attorney present while the questioning is underway, and
the right to have an attorney appointed if the suspect cannot afford one;
“and Will Be Used Against You”: Officers will probably not tell the suspect that anything they say “will” be used against them because it is NOT TRUE. Much if not all a suspect says after waiving Miranda is self serving or not relevant – both instances will lead a prosecutor to not introduce the information. Today – it is more likely the police will use the terms “may,” “might,” “can,” or “could” be used against them.
The Language Used Need Not Be Perfect
The language police use can vary as long as the warnings comply with the Miranda decision. The police need only “reasonably convey” the Miranda rights. Most police officers use their Miranda card or some kind of departmental Miranda waiver form.
Need Not Advise Suspect That They Can Invoke Their Rights At ANY Time
Most police officers do not add the right that the suspect can stop answering questions at any time. Whle this is true – it is not required.
Need Not Be Recorded
The advisement and subsequent decision to waive or not to waive is not required to be recorded.
But If They Incorrectly Advise You Of Your Miranda Rights
If the police do not properly advise you – any subsequent waiver is invalid on the grounds that it was not knowing and intelligent.
A Waiver of Your Miranda Rights Must Be “Intelligent”
A person under investigation needs to know their rights not only in the abstract, but they must understand them. While the rules do not require that the police obtain an express statement from the suspect that he understood his rights, the “totality of circumstances” must establish an intelligent waiver.
To meet this requirement – police often ask the question – “did you understand each of the rights as I explained them to you?” If you say “yes” – that will suffice.
Sometimes it is not so clear – if the accused later said he did NOT understand his rights, the court will look to circumstantial evidence of understanding which includes the suspect’s age, experience, education, background, and intelligence, prior arrests, and whether he has previously been advised of his rights in other contexts.
If a suspect asks for clarification – the police must clarify them. So the answer “more or less” to the question of whether you understand the Miranda warnings requires further clarification. Sometimes confusion arises about whether the right to a lawyer means a right to have the lawyer present as opposed to some abstract right to a lawyer further down the road.
The Impact Of The Suspect’s State of Mind Or Health At The Time Of The Waiver
Here are some of the contexts at the time of Miranda advisement:
The Suspect Is Under the Influence of Drugs or Alcohol – Even if the suspect is intoxicated or high – if his answers are logical and rational – the waiver is usually competent. As a defense lawyer – any waiver under these conditions should be strenuously attacked.
The Suspect Is Very Young – Whether police officers pressure a young suspect into waiving may be impacted not only by a suspect’s impaired mental state but by intoxication or by low IQ,
A Waiver Must Also Be “Voluntary”
Simply – Miranda waivers must be “voluntary” – no threats promises or other forms of coercion can underlie the waiver.
Just like admissions of guilt and confessions – a coerced Miranda waiver if proven in a motion to suppress -requires the suppression of any “fruits” of that coerced waiver.
A Waiver Of Your Miranda Rights Can Be Expressly Or Impliedly Obtained
Express Waivers – An express waiver occurs when the subject – after being advised – verbally or in writing – expresses that he is willing to speak with the officers. “Having these rights in mind, do you want to talk to us?” – “Yes.”
Implied Waivers – a suspect that never answers the “having a full understanding of your rights” question and – instead – just starts answering the police officer’s questions – impliedly waives his or her rights.
The reasoning? If the suspect wanted to remain silent he could have remained silent or invoked his rights – because he chose to speak and did not invoke those rights – the waiver is implied by his behavior.
Waivers Of the Miranda Rights Must Be Timely Made
The waiver of ones Miranda rights must be “reasonably contemporaneous” to the advisement of the rights. If there is a long hiatus between the advisement of your rights and the actual interrogation – the law may require a “re-advisement: because the suspect may have forgotten their rights or may believe they have somehow ” expired.”
This situation most often occurs if the police obtain a Miranda waiver long before they began to question him. In any investigation – there is a normal delay between the arrest and the interrogation – depending on the interim period it is not unreasonable for the suspect to maintain that he had forgotten his rights
The courts focus on the delay itself – why it occurred – and what occurred in the meantime, as well as the suspects state of mind which includes an impaired mental state or a very young person. Traditionally delays result because police compare notes, consult their supervisors or experts at HQ. Also other interviews may be ongoing, lineups are conducted, or suspects may need to tke “breaks” or have medical or psychiatric treatment.
A Simple Reminder – Usually Enough
Claims of timeliness violations are usually overcome if – before an interview starts or resumes – the police remind the suspect of his Miranda rights such as “do you remember the rights I read to you earlier?” If yes – then that will usually suffice.
The Police Can Lie to You Before They “Mirandize” You
The period before the Miranda advisement is known as “Pre-Miranda Waiver Communications” ….. While in custody – but before you are Mirandized – the police may sit down and begin with some kind of introductory remarks.. It is those introductory remarks that may “taint” the waiver of your Miranda rights.
It is required that the police properly advise you of your Miranda rights and obtain a proper waiver of those rights. That waiver – if it meets the requirements of the Miranda decision – will hold up even the police lie to you about other facts and evidence in the case.
The police will discuss such innocuous statements before Miranda is administered as:
What they plan to discuss during the interrogation.
The crime under investigation.
What evidence that they had obtained so far.
The penalties for the crime or crimes they are investigating.
…..Or not so innocuous statements – but such as:
“You were ID’d” – the suspect is told that a victim or witness had identified him.
“We found a gun in your house.”
“We have you on video”
“Your buddy confessed and snitched on you”
How To Defend Yourself With The Miranda Rights Shield – Colorado Criminal Lawyer Series
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
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