Many of you have read a client’s review that invoking your Fifth Amendment right is advisable. I had a client and his family who were involved in a situation which they were dealing with the Los Angeles Police Department (LAPD) and the Department of Children’s and Family Services (DCFS) at the same time. What this also meant is the real possibility of a case against the parents at Edelman Children’s Court and a criminal case against a member of the family.

The family called my office a day after the children were interviewed by the LAPD. They have never been in trouble before and they knew they needed help. Like many of my clients, they were referred to me by an attorney that they work with. Their instinct that allowing the children to be interviewed without the presence of an attorney could mean trouble proved to be correct.

The Los Angeles County Counsel represents DCFS and the Los Angeles County District Attorney’s Office work with LAPD or any law enforcement agency involved in criminal cases. A quick resolution was the goal and a team of attorneys were needed to put this case to “rest.” It was imperative that the appropriate mitigating work and professionals were to be retained.

Putting together the right team of attorneys and experts is something that is the product of being an attorney for nearly 25 years. Navigating the court system and the government agencies involved along with the legal expertise is critical.

But as this client aptly summarizes in my most recent Avvo client review, the Fifth Amendment invocation is a right we should all know. Putting it to “use” is another story.

The landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police.  Ernesto Miranda, a rape suspect, was arrested and taken to the police station.  After two hours of questioning, he signed a written confession and was subsequently found guilty.  Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.

The United States Supreme Court overturned Mr. Miranda’s conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights.  The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.

  • The right to remain silent;
  • Anything you say will be used against you in court;
  • The right to have an attorney present;
  • If you cannot afford an attorney, one will be provided at no cost to you.

This case had broad ramifications for all police officers and required them to issue these warnings when a person is placed under arrest and will be interrogated.  Note also that the officers are required to make sure you understand either each right specifically or in its entirety.  In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.

We are all aware of the contents of Miranda.  It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance.  More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee:  say nothing or seek the help of an attorney.

Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers.  Hence, if they are not cops, Miranda does not apply.  Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement.  I placed quotes on the words volunteer and spontaneous.  As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or spontaneously given.

Police are trained in interviewing and interrogating suspects.  They are required to study interview techniques, interviewing psychology, body language, tone of voice, phrases to be aware of, discrepancies and changes in answers.  Believe me, these observations are all memorialized in the police report.  It is a common practice for me to advise my clients charged with a crime that the police report do not put them in the best “light.”  They are very skilled in obtaining statements that can incriminate the accused but which the person believed absolved them of all guilt.

Miranda waivers must be unequivocal.  It must be a clear invocation—answers such as “Maybe I should talk to a lawyer” have been analyzed in court.  This was examined in Davis v. United States. Agents of the Naval Investigative Services interrogated the defendant in connection with a beating death of a sailor.  Initially, the defendant waived his rights but 90 minutes into the interview, he states, “Maybe I should talk to a lawyer.”  The agents asked clarifying questions and the defendant replied, “No, I don’t want a lawyer,” the interrogation continued with resulted in incriminating statements. The court rejected the defendant’s argument that any mention of a lawyer, however ambiguous is insufficient to invoke the right to counsel and that questioning must cease. The lesson here is that make your requests clear and simple—no wavering is allowed.

The Miranda warnings are short and simple.  They are not complicated. A statement of “I want to remain silent and I want an attorney” will suffice. I cannot emphasize enough that many defendants “bury” themselves with their own statements.  The protection afforded by Miranda should not be ignored but taken advantage of and invoked.

Any questions, give me a call at 310-601-7144 or email me at [email protected]

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CategoryLegal Advice
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