DNA: A Case Solving Tool Or Brave New World

There are presently more than a dozen pieces of legislation pending in the New York State Legislature to expand the use of DNA material. Recently a DNA data bank was utilized by Westchester County legal authorities to match the DNA of Francisco Acevedo for the murders of three woman in Yonkers from 2009.

Francisco Acevedo was arrested while driving intoxicated on January 26, 2009 in Brentwood Long Island. As part of that arrest Mr. Acevedo’s DNA was taken from him last year while he was serving a prison sentence in upstate New York. This was a result of multiple felonies convictions for driving while intoxicated convictions.

His DNA was compared to a data bank maintained by the State of New York which was established in 2004. The data bank linked him to three murder victims. Mr. Acevedo now faces multiple charges of first and second degree murder. Presently state law requires DNA to be collected from individuals convicted of felonies and a variety misdemeanors. The state of New York currently obtains DNA material from approximately 46% of all individuals convicted of crimes.

State Senator Dean Skelos, from Rockville Centre New York , wants the law modified so that DNA samples are taken from every single person arrested or under suspicion for committing a felony or misdemeanor.

State Senator Skelos claims that the Acevedo case is a good example of the types of crimes that would be solved if the states DNA data bases were expanded. Senator Skelos further stated that the expanded data base could solve crimes going back as long as 30 years. Senator Skelos was asked if he had privacy concerns regarding the expanding of the data base. His response was his job was to protect the public.

Expanding DNA data bases may be helpful in solving some crime however the over expansion of DNA collection makes me think of Aidous Hudley’s book “A Brave New World”. Americans are entitled to rights of privacy. A reasonable accommodation should be made for DNA collection but not at the expense of basic rights for American citizens.

If you are under suspicion or charged with a crime, contact the law office of Elliot S. Schlissel. We have been helping our clients with criminal matters for more than 30 years. Contact us at 1-800-344-6431 or by e-mail.

Picture courtesy of criminals.com.

Can the Police Search Your Cell Phone Without a Warrant?

In Ohio, cell phones protected by the 4^th amendment’s prohibition against unreasonable search and seizure by the government.

In a recent decision, the Ohio Supreme Court has ruled that police officers need to obtain a warrant in order to search a cell phone. This decision by the Ohio Supreme Court takes into consideration the fact that cell phones today go far beyond the means of basic communication. They are mini computers that store large amounts of personal information. From this point forward, the personal information becomes a protected privacy right, at least in the State of Ohio.

Although most searches require warrants, police officers are allowed to search their immediate surroundings when dealing with potential arrests for their own self protection. The Ohio case involves a man named Antwaun Smith. He was arrested on drug charges. At the time of his arrest his cell phone was ceased and later it was searched. The police found information important to their investigation on his cell phone calling records.

The recent ruling of the Ohio State Supreme Court was a divided 4/3 vote. The decision indicated that Mr. Smith’s protection against unreasonable search and seizures under the 4^th Amendment to the US Constitution were violated. The court, in its decision stated that cell phones are “capable of storing a wealth of digitized information”. The court’s decision indicated that individuals using cell phones have an expectation of privacy which is protected by the 4^th Amendment to the US Constitution.　

The Ohio court’s ruling creates a new type of privacy. As hand-held devices become more and more sophisticated, they will contain more and more personal information. Individuals rights of privacy in devices that are basically hand-held mini computers should be protected by the 4^th Amendment to the US Constitution. I have every hope that when a case presents itself, the NY Court of Appeals will make a similar ruling that respects individuals rights of privacy against unreasonable searches and seizures of all types of hand-held telephones and computer devices.

Should you, a friend or a loved one be subject to what amounts to be an unreasonable search, the criminal defense attorneys at the Law Office of Elliot S. Schlissel can use their expertise and diligence to protect your rights and the rights of a friend or a loved one. E-mail or call us at 1-800-344-6431.

Picture courtesy of the Daily Iowan.

To Taser Or Not To Taser

(The “Don’t Tase Me Bro!” Video – See minute marker 1:50)

 The United States Court of Appeals for the Ninth Circuit recently ruled that the use of a taser stun gun by a police officer can be considered, under certain circumstances, excessive force which leaves the police officer open to be sued for the injuries received by the tasered individual. The taser is an electric stun gun. It is powered by a lithium battery inside his handle. It shoots two bob prongs which are attached to the end of a wire that is 21 feet long. The prongs hook on to a person’s skin or clothing. When the prongs hit the individual, they discharge 50,000 volts of electricity for up to 5 seconds. This has the effect of temporarily incapacitated the tasered individual.

Although the taser is considered a non-lethal weapon, in some situations it has caused deaths.

In the case before the Ninth Circuit, Carl Bryan, had an emotional break-down after receiving a series of traffic tickets. While the police officer was writing out the traffic tickets, Mr. Bryan exited his vehicle and started to curse at himself. Mr. Bryan was distraught, crying and yelling giberish while beating his thighs.

A police officer on the scene, Officer McPherson tasered Mr. Bryan from approximately 20 feet away. Upon being hit by the taser, Mr. Bryan fell face down to the ground. The fall caused him to break four teeth.

The court held that at no time did Mr. Bryan present a threat to Police Officer McPherson. He neither made any verbal threat or presented a physical threat. The police officer should have spoken to Mr. Bryan first and warned him if he did not control himself he could be tasered.

As a result of this decision, Mr. Bryan can bring a civil lawsuit against Officer McPherson and his police department for injuries he received by the use of excessive force (being tasered) during his traffic stop. This is one of the first cases in the nation to create a legal standard concerning the use of taser stun guns.

Should you have an encounter with law enforcement officials who have acted inappropriately, call the criminal defense and civil litigation attorneys at the law offices of Elliot Schlissel by e-mail or at 1-800-344-6431. You may have a remedy available through a Civil Lawsuit.

In Prison, But Not “In Custody”???

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.

United States Supreme Court Addresses Life Sentences for Juvenile Defendants

In the United States today there are more than more than twenty-two hundred (2,200) juveniles who are incarcerated as adults. These juveniles are serving life sentences without the ability to obtain parole (to be released from jail prior to the end of their sentence). Among the twenty-two hundred (2,200) juveniles, there are some prisoners who are as young as thirteen (13) years old.

In 2005, the United States Supreme Court, in a close decision (5-4), held that an individual who committed a crime when he or she was younger than eighteen (18) years of age cannot be executed. The court held this was unconstitutional.

On Monday, November 16, 2009, attorneys representing two minors sentenced in the State of Florida argued before the United States Supreme Court that the theory behind the prior death penalty decision in 2005 should also be extended to minors receiving life sentences.

The theory behind the death penalty decision of the United States Supreme Court was based on two key factors: (1) minors are not as culpable for this crimes as adults and they can be reformed and (2) The Supreme Court held that it would be “cruel and unusual punishment” to execute minors. Cruel and unusual punishment is banned by the 8^th Amendment to the United States Constitution.

Terrence Graham and another individual robbed a restaurant. He is in jail for this crime. In 2004, when he was only seventeen (17) years of age, he was sentenced to life in prison without parole. This action was taken because he violated the terms of his probation by committing another robbery at gun point.

Joseph Sullivan, committed a burglary when he was thirteen years old. He thereafter was convicted of sexual battery against a seventy-two year old woman. Joseph Sullivan, a mentally disabled individual, has been convicted of several serious felonies and seventeen criminal offenses overall.

In the aforementioned two cases, both of the juveniles were given life sentences for crimes that did not involve homicides. It should be noted that more than 135 countries throughout the world do not allow life sentences for juveniles.

The United Nations Treaty prevents the imprisonment of children without the possibility of parole. All of the countries who are members of the United Nations with the exception of the United States and lonely Samoa have executed this treaty.

Is our society mature and sophisticated enough to deal with errant juveniles without warehousing them in prisons for their entire life?

–Elliot S. Schlissel, Esq.

800-344-6431

Picture courtesy of acslaw.org

Can The Police Strip Search You For Driving on a Suspended License?

Have you ever failed to pay all or part of a ticket, and then unknowingly had your license suspended, and then continued to drive using that suspended license?[1] Have you ever hung out in a club or bar where people were using drugs?[2] Do you know anyone who has failed to keep their property clean?[3] If so, it is possible for the police to arrest you and, until recently in New York City,[4] strip search you!

The law in New York states that a police officer may arrest you if he sees you commit a misdemeanor.[5] The three crimes listed above (and many others) qualify as misdemeanors, and so if the police observe you committing one of them, they are permitted to, but are not obligated to, arrest you.

The New York City Department of Corrections made it a practice to strip searchall misdemeanants charged with drug or weapons crimes who were detained upon arrest as well. The City claimed that “like felony detainees, [these misdemeanants] could never legitimately claim that they had a ‘right’ not to be strip searched.”[6] 

Unfortunately, there are major problems with the City’s logic. The 4^th Amendment to the U.S. Constitution, as applied against the States by the 14^th Amendment, prohibits the government from conducting “unreasonable” searches and seizures. Claiming that the Dept. of Corrections violated this Constitutional provision, a group of arrestees who had been strip searched at Riker’s Island without any individualized inquiry as to whether they were likely to be hiding weapons or contraband, sued the City of New York for violation their Constitutional right not to be searched “unreasonably.”[7]

Mark Hamblett, in the New York Law Journal, pointed out Southern District Judge Gerard Lynch’s recent finding in this case that the city is liable for violating the Constitutional right of those arrestees.[8]He pointed out that the Second Circuit Court of Appeals recently held that “it is ‘long-standing precedent’ that before a misdemeanant may be lawfully strip-searched on intake, the Fourth Amendment requires an individualized ‘reasonable suspicion that [he] is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’”[9]

Judge Lynch reaffirmed the notion that the Constitutional default setting of the police should be “Do Not Search” mode. Deviations from that require some specific, individualized justification. The police must have some specific reasons to justify a “reasonable suspicion” that a detainee may be in possession of either contraband or a weapon that poses a danger to the police.

The bottom line is that it is better not to commit any misdemeanors to begin with. But if you are arrested for one, the police need some specific facts on which to base a suspicion that you in particular have contraband or weapons (that would be revealed by a strip search) in order to conduct a strip search. If the police find anything illegal during a strip search, and the search was conducted without “reasonable suspicion,” you may be able to have that evidence suppressed. So be sure to hire a good criminal defense attorney to help you with this or any other criminal defense matter.

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[1]NY Veh. & Traf. § 511(1) (West 2009)

[2] NY Penal § 240.36 (West 2008)

[3] NY Penal § 240.45 (West 2008)

[4]McBean v. City of New York City, 2009 WL 2524617 (S.D.N.Y. Aug. 14, 2009)

[5]NY Crim. Proc. § 140.50 (West 2004)

[6]McBean at *6.

[7]McBean at *1-2.

[8]McBean at *6.

[9]Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir.2009)

Do the Police Need a Warrant to Attach a GPS Tracking Device to Your Car? (Updated)

Right now, it depends which part of New York you live in. In Westchester and Albany, the police do not need a warrant to place a GPS tracking device on your car, but in Nassau County they do.

On March 24th, the New York Court of Appeals heard oral arguments (video here) in the case of People v. Weaver, which will probably lay out a uniform rule for all of New York State (the Supreme Court of the United States has not yet ruled on the matter). In that case, the Defendant is appealing of the affirmation of his conviction by the Appellate Division, 3rd Dept.  People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008).

In this case, Albany police secretly placed a GPS tracking device on the Defendant’s car to track his movements without acquiring a search warrant beforehand. The issue in the case is whether tracking someone with a GPS device constitutes a “search.” If it does, then the police must either get a warrant first or justify their decision not to obtain a warrant under one of the established warrant requirement exceptions. If it is not a search, then the  Fourth Amendment would not be implicated at all and no warrant would be required.

The trial court and the Appellate Division reasoned that placing the GPS tracking  device on the car was not constitute a search and thus did not require a warrant because the police were not learning anything from the tracking device that they could not have learned by simply following the car. The courts held that since anyone can follow any car on the road, individuals do not have a “reasonable expectation of privacy” that the location of their cars on the roads will remain a secret.

During the oral arguments in the Weaver case,  Chief Judge Lippman asked the attorney for the government whether he would see any constitutional problem if the police decided to work with car dealerships to install GPS tracking devices on everyone’s car to watch their every vehicular movement. He elicited an admission by the government lawyer that his position was that such a practice would not offend individuals’ “reasonable expectation of privacy” under either the New York or U.S. Constitutions.

My legal e-pen pal, James Maloney, Esq., alerted me to this case and recently watched oral arguments  as well, and predicted that the new Chief Judge Jonathan Lippman will pen a majority opinion finding that surreptitiously installing a GPS tracking device on a car does constitute a search and would ordinarily require a warrant absent some kind of exigent circumstances (emergency). Or, even if he does not write a majority opinion, that he would write a strong dissent arguing that placing a GPS tracking device on a car does constitute a search.

In this case, the danger of a limitless right by the police to track individuals’ every movement justifies a constitutional requirement that they obtain a warrant before doing so in order to avoid abuses.

As always, if you need criminal defense help or feel that you are being investigated by the police for a crime, you are invited to contact our office.

Update 5/12/09: I posted one day too early. I have not gotten to read the case yet, but apparantly the Court of Appeals just issued their decision in this case, finding that the New York Constitution does indeed prohibit warantless placement of GPS tracking devices without a showing of Exigent Circumstances by police.  LINK.

Picture courtesy of consumertracking.com. As always, if you need help with any criminal matter, you are invited to contact our office.

After Gant, Is New York’s Car Search Rule Stricter, More Lenient or Juuuust Right?

Last week, the Supreme Court announced the groundbreaking decision of Arizona v. Gant, significantly limiting the police’s ability to conduct searches of automobiles  “incident to a lawful arrest” without either a warrant or probable cause. Before the Gant case, however, New York courts have consistently interpreted the State Constitution much more strictly, in this regard, than the Supreme Court had interpreted the U.S. Constitution.

This post will explore whether the new Gant decision makes the national rule regarding incident-to-arrest searches more lenient, as strict as New York’s rule, or stricter than New York, which would invalidate the New York rule to the extent that it was more lenient than the new Gant rule. This post will conclude that the Supreme Court’s new rule in Gant is still more lenient than New York’s rule, and that New York’s search-incident-to-arrest jurisprudence will probably not be affected by the holding in Gant.

For a nice summary of the development of the Supreme Court’s rules with regard to searches of automobiles incident to a lawful arrest, see the first part of Evidence ProfBlogger’s post at PrawfsBlawg,  Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests.

In short, before Gant was decided on Tuesday, the national rule, established by the Chimel case, was that  was that incident to any lawful arrest, police may  search “the area from within which he [an arrestee] might gain possession of a weapon or destructible evidence.”  In the context of car arrests, the Court, in New York v. Belton, made a bright line rule that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” This right was automatic. It did not depend on the arrestee’s actual ability to reach a weapon or destructable evidence, nor did the police have to show probable cause or reasonable suspicion that the car was likely to contain evidence or a weapon.

These cases set a very low bar for what would constitute an “unreasonable search and seizure” in the context of a search-incident-to-arrest of an automobile. But New York has consistently interpreted its own Constitution more strictly, not adhering to the lenient bright line rule set by Belton.

People v Blasich, 541 N.E.2d 40 (1989), and, later, People v. Galak, 616 N.E.2d 842 (1993), have interpreted the New York State Constitution‘s “[s]ecurity against unreasonable searches, seizures and interceptions” provision (Article I, § 12) as follows: The Court of Appeals has held that the “search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution… exist[] only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence.” Blasich.

Alternatively, the Court held that police may search the car, even where the arrestee factually cannot reach it, where they have

“probable cause to believe that the vehicle contains contraband, evidence of the crime, a weapon or some means of escape. If so, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.” (emphasis added) 

The Blasich court further held that “the proper inquiry in assessing the propriety of [the] search is simply whether the circumstances gave the officer probable cause to search the vehicle… Which of those crimes the officer selected when formally notifying the suspect that he was under arrest has little bearing on the matter.” In other words, it is immaterial whether the probable cause justifying the car search is also probable cause of the same offense that justified the initial arrest. As long as there is probable cause of some crime justifying the automobile search, the police may search it.

The question is whether the Supreme Court’s Gant decision last week brings up the U.S. Constitutional test for searches incident to arrest to the point where it is stricter than, more lenient than or the same as New York’s rule.

In order to answer that question, we must first understand what level of certainty the Supreme Court now requires the police to have that they will find evidence in the arrestee’s car. According to Gant, the police may only search an arrestee’s vehicle when when he “is unsecured and within reaching distance of the passenger compartment the time or the search”, or when it is “reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (emphasis added) 

How certain must they be that evidence of the offense of arrest may be found in the car? The same level of certainty as “probable cause?” “Reasonable suspicion?” Some new test?

 Orin Kerr offers a fundamental discussion of this question in a post at The Volokh Conspiracy, entitled When Is It “Reasonable to Believe” That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?.

In that post, he rules out the idea that “reason to believe” means probable cause because if that is what it meant, the search would be justified under the “automobile exception” to the warrant requirement irrespective of the “search incident to a lawful arrest” exception. Furthermore, he points out that Justice Alito’s dissent specifically distinguishes the “reason to believe” standard from “probable cause,” indicating that he understood the majority’s “reason to believe” test to be something other than probable cause.

I would add that even though the New York Court of Appeals in Blasich, above, uses the phrase “reason to believe” to mean “probable cause, I do not think it is necessarily relevant in determining the Supreme Court’s intended meaning when using the phrase “reasonable to believe.”

Professor Kerr also reasons that it is unlikely that Terry‘s “reasonable suspicion” test is the underlying meaning of “reason to believe.”  As applied to the car search context, “reasonable suspicion” would probably be defined as “whether ‘a reasonably prudent man in the circumstances would be warranted in the belief’ that there was evidence relevant in the arrest in the passenger compartment of the car.” Prof. Kerr opines that this standard would seem difficult to apply in the context of a determination of whether a search for evidence is reasonable, in contrast with its simpler application in a Terry frisk, when the officer has to make a quick decision about whether the person in front of him may be concealing a weapon.

Prof. Kerr concludes that “reasonable to believe” is probably something less than probable cause, but it is not clear to him exactly what level of certainty it is. 

“Reasonable to believe” is most likely less than probable cause. Partly, this is because, as Prof. Kerr pointed out, Justice Alito understood the majority this way in his dissent (and Stevens opinion in Gant also takes note of how influential the Brennan dissent in Belton was in shaping courts’ interpretation of the Belton majority). Also, if the majority opinion had intended to invoke the big gun, the probable cause standard, it should have and probably would have done so explicitly.

But there is another reason why this author believes that the court requires less than probable cause to justify the car search when the arrestee is secured. The fact that the court requires that the officer have a reasonable belief that evidence of the “offense of arrest” might be found in the car indicates that this level of certainty is not synonymous with probable cause. Because if it were, then the probable cause of whatever offense would justify the search of the car under the automobile exception, without the need to invoke the incident-to-arrest exception.

It is evident that the Court is trying to grant added protection to defendants by requiring that the reasonable belief must be that evidence of the offense of arrest will be found specifically because the justification for the search is something less than probable cause. Such a stringency in the search-incident-to-arrest doctrine would not be needed if probable cause that evidence would be found in the car were present and the automobile exception applied.

The court probably requires “offense of arrest” specific reasonable suspicion in order to limit the use of “pretextual stops,” where police pull someone over for some traffic offense, for which the driver could be arrested, because they want to find  evidence of some unrelated offense, in  a search of the vehicle in incident to that arrest.

All of that being said, it appears that New York’s rule is still stricter than the Supreme Court’s rule.

It may appear from the Court of Appeals’ Blasich decision, mentioned above, that New York is more lenient than the Gant case because it allows searches of secured arestees’ vehicles for any offense, while Gant only allows searches for evidence of the offense of arrest.

This is not so, however, because Blasich explicitly stated that the search of a secured arrestee’s car for evidence of any offense is not justified “as a search incident to arrest, but rather as a search falling within the automobile exception to the warrant requirement.”  The New York rule, therefore, permits car searches supported by probable cause that evidence of any offense will be found, using the automobile exception. While Gant holds that police must reasonably believe that evidence of the offense of arrest might be found.

This author believes, therefore, that in situations where a suspect has been secured and police do not have probable cause that evidence of some crime will be found in the car, New York will continue to apply the stricter rule that police may not search the vehicle without a warrant. While outside New York, the new Gant rule will be followed that would allow a search of a secured arrestee’s vehicle when police have a reasonable belief that evidence of the offense for which the suspect was arrested might be found in the car.

Picture courtesy of howstuffworks.

A Problem (And Solution) With the Miranda Right to Counsel

Our 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.

Review of Select Law School Audio CDs

One strategy that has been very effective for me in my law school career has been listening to audio summaries of many of my courses. In addition to preparing for class, briefing cases, outlining, and doing practice exams (indispensable!), I use my time driving to and from work and law school to listen to audio lectures of the courses I’m taking, especially as exams begin to approach. I’m working full time at The Law Offices of Elliot Schlissel, which is a great experience, and attending law school part time in the evenings. So time management is very important to me. I’m nearing the end of my 3rd year, out of four, in law school. So I have had the opportunity to listen to audio lectures on most of my classes up to this point.  The following are my reviews of the CD sets that I have listened to. I’ll give each one a rating of either (5) Excellent, (4) Good, (3) Average, (2) Bad, or (1) Terrible and my reasons.

Civil Procedure with Arthur Miller : (5) Excellent!  Everyone I’ve spoken to loves these as well. He is a great speaker with a great voice and he is a known expert on Civil Procedure. He has the ability to take a potentially boring subject and making it interesting and enjoyable to listen to. That is a major accomplishment. It’s the longest set of CDs I’ve gotten so far, numbering at 10. But it is well worth the investment financially and with regard to one’s time. It is an excellent review of the subject. I listened to these CDs between 4 and 6 times throughout the semester and it really helped me keep my understanding of the subject organized and clear during the exam. These are really indespensible. A must-buy!

Contracts with Douglas J. Whaley: (4) Good. He is also an interesting speaker and he gives some nice examples to illustrate some of the concepts. I found these CDs very useful and I would definitely recommend them to others.

 

Property with Julian Jurgensmeyer: (4) Good. Even more than Civil Procedure, this was a difficult course. And anyone who has taken Property understands why. The bulk of the class seems to focus on estates system from England 400 hundred years ago. This is a difficult and hard-to-relate-to system. Given the difficulty of the subject, Prof. Jurgensmeyer does about as good a job as seems possible when teaching the Rule in Shelly’s Case, the Rule Against Perpetuities (“the RAP”) and the like. Nothing that I know if can make this subject easy, but these CDs were definitely a good supplement to my class.

Criminal Law with Joshua Dressler: (5) Excellent+!+!  Criminal Law is already an inherently more interesting subject than some others and Prof. Dressler does an amazing job of clearly and engagingly explaining everything. Along with Arthur Miller, Dressler is the best of the best. It is definitely worthwhile to get these CDs. In fact, I wish Professor Dressler had lectures on every subject in law school. He is also the author of the casebook my professor used so it was nice to get a consistent perspective on things  from both the casebook and the lectures. A must-buy!

Constitutional Law with Mary Cheh: (4) Good. These CDs were very good and interesting. Prof. Cheh was extremely organized and explained everything clearly and is a good speaker. I would certainly recommend these lectures to anyone taking Con Law. There are a lot of controversial topics in this subject and I think she handled them fairly and even-handedly, such that one cannot really tell where she falls out on those issues. I cannot say anything negative about these lectures and I would definitely recommend them.

Intellectual Property with  John R. Thomas: (2) Bad. I did not feel that he explained the concepts clearly and, although this is subjective, I found his voice to be annoying. Although Prof. Thomas does not come from an ostensibly Ivy League background, he speaks, laughs and makes jokes as if he goes to Harvard, his name is Biff, and he likes to play golf with his friends Thurston, Muffy, and Tiffany. Perhaps this lecture series was more beneficial to me than nothing at all, but even if so, it was not by much.

International Law with Sherri Burr: (1) Terrible. Prof. Burr was an unengaging, disorganized speaker. For the first time, I was not able to even finish listening to these CDs. It sounded like she was reading from a low-quality  textbook. I would definitely recommend searching out some other resource to supplement one’s course in International or Transnational Law.

Wills, Trusts & Estates with Stanley Johanson: (4) Good. Professor Johanson is definitely different from other lecturers. Some people I spoke to didn’t like him, but I did. I found him charming like a quirky old timer uncle from East Tennesse who is fun to chat with during family reunions and get-togethers (although he’s from Texas, not Tennessee).  He has a cute sense of humor and an unusual way of teaching. Rather than give his lectures in outline format like most of these audio lectures, he includedes a pdf file full of hypothetical situations with the CD set. And his lectures are organized around him explaining the answers to those hypotheticals throughout the lectures. I found these CDs amusing and helpful and would recomend them to others.

Federal Income Tax with Cheryl Block: (4) Good. Prof. Block does a good a job in this subject. Federal Income Tax is actually not about math. It’s about understanding tax law and it’s actually fairly easy to relate to as a subject since we all do things, have done things, or know people who’ve done things that have tax consequences. The subject is fairly easy to relate to when learning the subject. Prof. Block did not stand out as over-the-top great, but she is a good speaker and the lectures are definitely helpful and I would recommend these lectures as a very helpful supplement to your class.

Criminal Procedure with Joshua Dressler: (5) Excellent +!+!+! If Professor Dressler was great in Criminal Law, he is outstanding in Criminal Procedure. He wrote a Treatise on Criminal Procedure and he is just as clear, mellifluous, interesting and organized in Crim Pro as he was in Crim Law. Before taking this class, I expected the class to be more about the nuts and bolts of criminal cases and police procedure. In reality, this class is just an extension of Constitutional Law. Whereas the 2nd half of Con Law focuses more on 1st Amendment and 14th Amendment substantive due process rights, Criminal Procedure focuses more on 4th Amendment Search & Seizure, 5th Amendment self-incrimination, and 6th Amendment right to counsel issues. But both subjects are merely different areas of Con Law. Because of the Con Law nature of the class, and the inherent drama in the process of police investigations, searches, arrests and interrogations (there are countless TV shows with these themes, after all), this is certainly one of the more interesting subjects. And again, Professor Dressler is an amazing resource for understanding the rules and historical progression of the law in this area. Another must-buy!

I have also listened to the CDs on Family Law, which were very good, even though I have not taken those courses yet. I hope these reviews will help  people make an educated choice about how and which audio lectures to use in reviewing their law school courses.

Picture (top) of Prof. Stephen Presser speaking at Northwestern’s Law School courtesy of USNews.com.