Miranda warnings given to individuals arrested in th United States are given based upon the United States Supreme Court’s decision in Miranda v. Arizona. The Miranda warnings require the police officer, FBI agent or other governmental arresting officer to advise the arrestee that anything they say or do could be held against them, that they have a right to an attorney and if they cannot afford an attorney, an attorney will be appointed for them.

President Obama is considering supporting a law that would either delay or eliminate the Constitutional Miranda warnings when dealing with individuals charged with terrorism. Constitutional attorneys and former prosecutors have discussed a terrorism exception with regard to giving Miranda warnings to individuals arrested for terrorist acts. They suggest a terrorism exception could last up to 48 hours before the Miranda warnings would have to given to the suspect. There has also been a discussion of a statue authorizing emergency detention of individuals suspected of having committed terrorist attacks.

The United States is currently the only country in the world that gives individuals suspected of being charged with crimes various warnings to protect themselves from making statements that could be used against them at trial.

I personally believe that the Miranda warnings are important protections for individuals suspected of committing crimes. However, a 48 hour exception to the Miranda rule should be carved out for suspects charged with terrorist acts. We live in a world in which terrorists seek to take away the basic freedoms that we have fought so hard to protect. This minor exception to the Miranda rule in certain circumstances maybe necessary to protect the lives of Americans against catastrophic terrorist attacks.

We advise our clients not to say anything to police officers if they are pulled over, or are taken into custody. Even seemingly innocuous answers to carefully crafted questions like “Do you know how fast you were going?” or “Are you dealing with some sort of emergency?” can be used to clinch a conviction in what may otherwise been a weak case against a person. This is because when one is being pulled over, he is not being “custodially interrogated,” and therefore the officer does not have to advise someone of their right to remain silent before making incriminating statements.

But recent cases have shown that there are instances, even after one has been incarcerated, where there is no “custodial interrogation,” and one can be questioned without being advised of his right to say “I don’t want to talk.”

Background

The famous Miranda decision allows a defendant to supress his or her own incriminating statements, so that they cannot be used at trial if they were elicited during a “custodial interrogation” without a valid waiver of the Miranda right to remain silent and right to counsel. The background to this rule was discussed earlier in this post.

In order to exclude one’s incriminating statements from evidence, the statements have to have been made without a valid Miranda waiver in the context of police “custody,” and while under “interrogation.” And while the meanings of those two words may seem self evident, they have developed very specific meanings in the Miranda context.

The recent Second Circuit Court of Appeals decision in Georgison v. Donelli, reported in this past Thursday’s edition of the New York Law Journal, is a good illustration of how particularly the term “custody” is defined.

While incarcerated at the Riverview Correctional Facility in 1996, New York City police officers were questioning Mr. Georgison regarding the 1993 pipe beating of a truck driver in the  Bronx, a matter unrelated to his incarceration. During the conversation, he made some incriminating statements. After making those statements, he indicated that he did not want to talk anymore and walked away. At trial, those statements were then used against him at a trail relating to that beating. He appealed the judge’s decision to admit his statements into evidence, arguing that he was being sbjected to “custodial interrogation” without Miranda warnings, or a waiver of those rights, at the time the statements were made.

His arguments were rejected in this most recent Second Circuit decision. The courts held that “custodial interrogation,” for Miranda purposes, can only exist where a person does not feel free to walk away from the officers questioning him. They held that this was not the case with Mr. Georgison’s interrogation, where he felt that he was at liberty to walk away from the officers when he no longer wanted to speak to them. The courts held that this conduct indicated that he did not feel he was restrained or not at liberty to leave the interrogation, and thus that his interrogation was not “custodial.”

They held that it was irrelevant that he was in a prison, and was unable to freely leave the prison as a whole. Miranda only requires that the person being questioned must feel restrained from leaving the interrogation. Being unable to leave his general surroundings, however, is irrelevant for the purposes of determing the presence or absence of “custodial interrogation.”

Thus, one should consult a competent criminal defense attorney, such as those at The Law Office of Elliot Schlissel, before saying anything to police officers, whether it is in the context of a simple traffic stop, one whether one is already incarcerated. You can contact our office, 24/7, at 800-344-6431 or by e-mail for help or more information.

Picture courtesy of FBI.gov.

mirandaOur office  maintains a significant criminal defense practice and therefore the issue of police Miranda violations is of great interest to the firm.

Miranda v. Arizona established a “Miranda right to counsel” during custodial police interrogations, purportedly based on the Fifth Amendment.  One problem with the Miranda decision is that the Sixth Amendment right to counsel during “criminal prosecutions” implies the absence of any constitutional right to counsel prior to the commencement of a formal criminal prosecution. A possible solution to this problem with Miranda‘s interpretation of the Fifth Amendment will be offered.

The Miranda court  derives its asserted Fifth Amendment right to counsel from the provision that “[n]o person shall… be compelled in any criminal case to be a witness against himself.” The court reasoned that someone’s right not to be compelled to make incriminating statements is functionally impossible without an implied right to counsel during an “inherently coercive” custodial interrogation, which usually occurs before the onset of a “criminal prosecution,” i.e. arraignment, when the Sixth Amendment right to counsel kicks in.

The Sixth Amendment states, in pertinent part, that “[i]n all criminal prosecutions, the accused shall… have the assistance of counsel for his defence.” The Supreme Court, in Hamilton v. Alabama, held that the Sixth Amendment right to counsel begins in the “critical stages” of a “criminal prosecution” such as arraignment, when certain defenses must be preserved in many states.

It appears from a comparison between the Fifth and Sixth Amendments, then, that Miranda‘s implied Fifth Amendment right to counsel is broader than the Sixth Amendment’s right to counsel because it applies during custodial interrogation, an earlier point in the process than the subsequent arraignment, when the Sixth Amendment’s right to counsel begins.  But there is a logical problem with this.

The Sixth Amendment boldly set forth the rule that one has a right to counsel beginning at arraignment or at some similar “critical time” in criminal prosecutions. If an even broader right to counsel already existed much earlier in the process based on the Fifth Amendment, then what is the Sixth Amendment adding?! Put another way, the Sixth Amendment’s assertion of a right to counsel at a point like arraignment implies that no such right existed prior to that point in the process.

It is all well and good to reason that the Fifth Amendment must imply a right to counsel because one’s right not to be compelled to make incriminating statements against himself during custodial interrogation would be functionally impossible without a concomitant right to have an attorney present.  However that is only compelling if no other Amendments make a statement explicitly or implicitly about the presence or absence of a right to counsel. But because the Sixth Amendment grants a “narrower” right to counsel during “criminal prosecutions,” it thereby implies that no right to counsel existed prior to that moment, thus negating any interpretation of the Fifth Amendment that reads a right to counsel therein. This is (one of) my problem(s) with Miranda.

An answer to this problem is possible because it is not actually true that the Miranda right to counsel is broader than the Sixth Amendment right to counsel.  In some instances, the Sixth Amendment right is broader than the Miranda Fifth Amendment right. Where a defendant has been arraigned and released on bail pending trial, he is still at a “critical stage” when the Sixth Amendment gives him a right to counsel. But because he is walking free, he is not in a “custodial interrogation,” and the Miranda implied Fifth Amendment right to counsel is not invoked. At that juncture, Miranda‘s right to counsel is narrower and “more lenient” than the Sixth Amendment’s broader right to counsel.

It is possible, then, that an implied Fifth Amendment right to counsel would not render the Sixth Amendment right superfluous. The Sixth Amendment adds on the additional right to counsel in those situations where a defendant is post-arraignment and not subject to any custodial interrogation.  Since the Sixth Amendment does add a right to counsel that does not exist in Miranda‘s Fifth Amendment right to counsel, in such situations, it is possible to assert that a “narrower” (in some instances) right to counsel exists in the Fith Amendment as well.

The fact that the Sixth Amendment right to counsel is broader, in some instances, than the Fifth Amendment Miranda right to counsel certainly does not prove that there is a Fifth Amendment right to counsel. Many arguments still exist that the Miranda Court was wrong in reading a right to counsel into the Fifth Amendment. But the above-mentioned factors  indicate that the existance of a Sixth amendment right to counsel is not dispositive as to the absence of a Fifth Amendment right as well.

Picture of Ernesto Miranda courtesy of pbs.org.

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