Hollow Miranda Warnings: You Must Invoke Your Right to Counsel

I watch the First 48 and think to myself, "what is wrong with these people? Why don't they ask for a lawyer?" The days of police and prosecutors respecting your Sixth Amendment right to Counsel are over. With new case law emerging, there is a potential that if you do not specifically invoke your right to counsel, you may not be entitled to counsel. Pursuant to new case law, you may be required to actually ask for an attorney and to do so in a timely manner. The days of the burden being on the police to protect your right to counsel are over. The burden is on you to clearly and unequivocally invoke your right to counsel. The police are required to give notice of your right to counsel, but the police are not required to ask if you want an attorney.

I have heard client after client say, "They didn't read me my rights!" Honestly, that only matters if three things occur: 1) you're being interrogated, 2) by an agent of the state (typically a police officer or district attorney), and 3) you are actually in custody (not necessarily in handcuffs but in custody can be anything other than a normal traffic stop -- although depending on the length of the traffic stop, even a traffic stop could be argued to be tantamount to being in custody, that amounts to being under arrest, meaning you are not free to leave). So when the officer calls you on the phone to question you about a case, you are not entitled to Miranda because you were not in custody. When the officer asks you to come down to the police station for an interview, you are not entitled to Miranda because you went there voluntarily and you can leave when you please. Determining whether you were entitled to a Miranda Warning is very fact-specific, but if you talk to an attorney before speaking to police you are very unlikely to ever, ever, ever, ever speak to the police. Particularly, why would you speak to the police without first knowing what they know! If you invoke your right to counsel, you will not need to guess what the officers know and don't know, your attorney will have the police reports, the witness statements, and you can make an informed and educated decision about whether you want to waive your constitutionally-protected rights.

A recent United States Supreme Court decision, Maryland v. Shatzer, changed the rules in favor of the police and prosecution. Prior to the Shatzer case, the rule of law set forth in Edwards v. Arizona established that once a suspect invoked the right to an attorney in an interrogation, the police were not allowed to approach the suspect and begin questioning the suspect again unless and until that suspect had an opportunity to speak to an attorney. Now an officer can interrogate a suspect, even after the suspect has invoked his right to counsel and even if that suspect never had an opportunity to speak with counsel, if: 1) the police wait 14 days after the suspect invoked his right to counsel and 2) there must also be a break from custody for those 14 days. The US Supreme Court says as long as there is a break in the custody of the suspect for 14 days, the police can re-initiate interrogation. Here is the thing: Shatzer was in prison when he was intially taken to an interrogation room and questioned. He invoked his right to counsel The police waited to speak with him after 14 days back in the interrogation room at the prison. Although Shatzer was clearly in prison and clearly in custody, the US Supreme Court stated that since he was allowed to return to his normal prison life (where he clearly is not free to leave which is the biggest consideration as to whether the person is in custody or not), but per the US Supreme Court, Shatzer was no longer in "custody." As such, there was a technical break in the custody so his admissions in the second contact were admissible.

It is important to know that you need an attorney if you are questioned by law enforcement. Your child needs an attorney if he/she is questioned by law enforcement. The reason the police want to speak to you without an attorney is because they want to build a case. Period. By speaking to the police, without first consulting an attorney on the advisability of doing so, you are only helping the police build a case against you. The police are trained to interrogate in a manner that will be helpful to the police. Even if you want to tell your side of the story or you want to explain what happened, do it after speaking to an attorney. Exercising your constitutionally-protected right to counsel is imperative in keeping our judicial system fair and just.

Time and time again, I see parents let their children speak to police. Often times, those parents have no clue what their children are going to say and the ramifications that statement will have on their child. Remember, if the police speak to your children without you present or without your permission, the statement will likely be inadmissible. Bottom line, folks: You have a right to remain silent, so use it! And then, you better call LEE | LAW.

*This blog is for educational purposes only! This is not legal advice note does it establish an attorney-client relationship.