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Miranda Invocation

3K views 40 replies 29 participants last post by  MB-G26 
#1 ·
Has anyone ever had someone invoke Miranda (e.g. "I'm not answering your questions without a lawyer") right as you began to read them their Miranda rights?

If so, what did you do. Had a somewhat interesting situation last night where two of our guys were interviewing someone and about to read Miranda, when the subject said the above. In result of it, they didn't finish reading him Miranda and just stopped the interview. They were apparently caught off guard by the guy not waiting until they were done and overlooked they had never actually read the rights. I personally think this was a tactic the guy purposely used to avoid being Mirandized, banking on the inexperience of the two and am curious to know if anyone else has experienced something along those lines.
 
#27 ·
The end result was two-fold: 1) Prosecutions is saying "Oh, no! We can't go on him now because he was never read Miranda" and then 2) The AUSA is saying "No, it's fine because no questioning relating to the charged crime had been asked."

I'm of the belief that Miranda should have still been read, but in reality it did not matter because no questioning commenced. Some are saying though that he still *MUST* be read Miranda regardless simply so that he "knows his rights."
Prosecutions is wrong, as are the "some are saying" crew.

The people who've been jailed, prosecuted and imprisoned without ever have been read Miranda are legion. As said above, Miranda only applies if you're conducting an in-custody interrogation. Even if he doesn't know his rights, so what? You aren't asking him any questions to incriminate him, and his 6th Amendment right to counsel will be taken care of upon appearance. Same deal if he demands a lawyer---are you going to go get him one? Of course not; you're just not going to question him.

And if he invokes without Miranda, excited utterances and unsolicited statements are in.
******: "What am I being charged with?"
Cop: "Pre-meditated murder."
******: "I didn't mean to kill him."

Sounds like a confession to me, wholly admissible even if he had demanded a lawyer...because it wasn't an interrogation and protections against self-incrimination don't kick in.
 
#28 ·
I read your response, I'm not sure what the DA or AUSA mean.

You don't need to read people their Rights as a public service.

You read people their Rights when they are in custody, and you are about to interogate them. In this case, when he invoked his Right to Counsel, that ended the interogation. No interogation no need to continue with reading Rights.

If I read your response correctly your DA is an idiot, and you should listen to the AUSA.
 
#29 ·
If you PM me your email address, I can forward you over a real good 4 page law review on Miranda issues I just got a few weeks back. Covers both the 5th and 6th amendment portion of Miranda and a lot of "what if's"......It's a good read!

Also- I am hesitant to put too much on here....any wackjobs from the other subforums may stumble on it.
PM Sent.

ALCON-

The particular AUSA is on the ball. The problem in my particular agency is you have too many people, supervisors specifically, who think they are lawyers or legal scholars. Very few stay up on case law let alone know what case law even is, sadly. When trying to argue with (correct) them, they simply do the "see these bars... I'm right" deal.
 
#30 ·
I can't count how many POS's I've arrested without giving a Miranda warning to. I didn't need to. Either I saw them do it or it was a felony that there was enough PC to believe they committed it.

I had a guy all giddy as hell cause he thought he was going to get off cause I didn't read him his rights. I told him I didn't need to and why. I told him, "Enjoy your stay." He was not amused.

I always like to try to get spontaneous statements when I can, they think we can't use them for some reason. It's always fun when they try to argue that I didn't read him his right when he said , such and such. When it comes out that they were never questioned and they fell on their own sword by themselves, I get happy thoughts. If DB has diarrhea of the mouth, let him finish, it just makes my job easier.
 
#32 ·
I read your response, I'm not sure what the DA or AUSA mean.
DA = District Attorney, i.e. the local prosecutor's office
AUSA = Assistant U.S. Attorney, i.e. the federal prosecutor's office

In most jurisdictions, the two rarely agree and often have different opinions on how things should be legally and procedurally done from a law enforcement standpoint.
 
#33 ·
DA = District Attorney, i.e. the local prosecutor's office
AUSA = Assistant U.S. Attorney, i.e. the federal prosecutor's office

In most jurisdictions, the two rarely agree and often have different opinions on how things should be legally and procedurally done from a law enforcement standpoint.
Thanx, I knew that, I meant I wasn't sure what their responses meant.
 
#34 · (Edited)
Also, judging by the guys visits to various "temporary vacation institutions" around the country, I think his invoking prior to Miranda fully being read was intentional so that anything he said (purposely or accidentally) at a later time could not be used against him. .
This is what I was going to suggest. Just in case he gets stupid or gets tricked into saying something later, he can get it thrown out, at least that's his plan.

If you cannot afford an attorney, one will be provided for you, but they're not very good, and anything they say will probably end up being used against you in court of law too... :)

Randy
 
#35 ·
Wow...

I can't believe Miranda is still this difficult. I'm completely with Sam Spade and the others on this that say that he can invoke at any time and once he does so, there is ABSOLUTELY NO NEED to read the advisory, finish the advisory, or anything. That's it. Rights unequivocally and affirmatively invoked. There can no longer be any custodial interrogation, so whether they "know their rights" (by having them read to them), it does not matter. You can read them, and they can decide, after hearing them, to talk, and YOU STILL CAN'T DO IT!

And I think you would be fine with the under the influence question even if it was potentially related to your charge as a booking information exception.
 
#37 · (Edited)
Slightly different question.
You are not arresting a person but just investigating a crime.
You ask a citizen and show your ID and say "I'm investigating X, may I ask you a few questions?"
Citizen says "I really don't want to talk with you." (not mentioning the "L" word.) or "I don't want to be bothered (involved)."
Is there a law preventing the officer from continuing to press the questions?
 
#38 ·
Slightly different question.
You are not arresting a person but just investigating a crime.
You ask a citizen and show your ID and say "I'm investigating X, may I ask you a few questions?"
Citizen says "I really don't want to talk with you." (not mentioning the "L" word.) or "I don't want to be bothered (involved)."
Is there a law preventing the officer from continuing to press the questions?
That's called a Terry Stop (from the Supreme Court case Terry v. Ohio). The required "burden of proof" is less than that required for an arrest, reasonable suspicion instead of probable cause. If an officer reasonably suspects that a person may be part of criminal activity, the person can be stopped and ID'd. They don't necessarily have to answer any specific questions and Miranda doesn't apply since they are not legally "in custody" but the officer can hold them as long as it takes to verify their identification. So no, you don't have to say anything but that means you probably won't be going anywhere soon. There's more to it, but that's the nuts and bolts.
 
#40 ·
Minor thread hijack/question. If a person is being questioned can they request audio tape copy of questioning? My "concern" is being a suspect and the Officer remembering what he wants instead of what is said.
If the person is ultimately charged his attorney can request it in discovery; if the person is not charged and the investigation is not considered to be "ongoing" then a public records request would most likely cover the audio.

Obviously this will vary some state-to-state, and the public records thing hinges on the investigation being closed / finished.
 
#41 · (Edited)
I always took the salesman approach to interrogations, ( just don't tell them what you are selling is prison cells) Before ever reading them their rights I would tell them we were going to do a formal interview and this was their opportunity to tell their side of the story and get it on record.
Just a light note (vs. pooping on the thread) I guess I would fail BG101 because I would SO fall for this - :embarassed: (And I'll guess that Sam would agree *snarfle* )
 
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