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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.
 
#4 ·
As soon as they use the L-word, you're done. Right to counsel can be invoked at any time, and it applies even if you haven't read him the notification that he has a right to counsel.
 
#6 ·
#8 ·
This is the correct move, but has anyone ever had this done to them as a means to make statements inadmissible?
No, because once they invoke, they generally don't say anything more that would be considered to be a statement, or incriminating; so it's kind of a non-issue.

Lack of reading Miranda by itself is not the issue. Lack of reading Miranda and then proceeding with custodial interrogation is.
 
#9 ·
This is the correct move, but has anyone ever had this done to them as a means to make statements inadmissible?
If the person is in custody and has invoked right to counsel, if you keep asking questions, the answers will be inadmissible. But it is pretty rare that someone would then keep answering questions after invoking, or that you would keep asking questions. He invokes, you stop questioning unless he initiates further contact.
 
#10 · (Edited)
Once I start reading Miranda and he invokes, I stop and the interrogation is terminated. He is in custody and I've begun the interrogation. Miranda is just the first step in the interrogation before I get to the other questions. Once he invokes, game over.

What would be the point in continuing to read the Miranda Rights form after he has invoked? It is an unequivocal declaration that he wants a lawyer before answering any questions.

ETA: Your Miranda Rights don't attach once the form is completely read to the suspect. They attach once a custodial interrogation begins. Therefore, if you are still reading the Miranda Rights to him and he invokes, then he has invoked his right to counsel.
 
#12 ·
If he invokes, then stop reading Miranda and don't ask any questions. You don't have to put him right into a holding cell or transport immediately, though. Just sit there for a couple minutes without saying anything. Pretty good chance that he'll start to talk on his own and give you something useful without you saying a word.
 
#13 ·
Yep. Just keep finish reading them their rights.

On a side note, I've had people in an interview room who lawyered up as soon as I asked them their name (even though I know who they are). I still read them their rights. Then I just give them one of my business cards, the case number, and tell them what they're going to be charged.

Have a nice day.
 
#14 ·
Only once did I have a guy refuse to talk. He wouldn't with or without a lawyer, in his case though we had more than enough eyewitness testimony and evidence to send him to prison.

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.
 
#15 ·
If he invokes, then stop reading Miranda and don't ask any questions. You don't have to put him right into a holding cell or transport immediately, though. Just sit there for a couple minutes without saying anything. Pretty good chance that he'll start to talk on his own and give you something useful without you saying a word.
This is good. Also wait for him to ask a question. Reply by saying you want to have a conversation, but you can't because he invoked. He is desperate to learn what you know. Exploit this.
 
#16 ·
Once I start reading Miranda and he invokes, I stop and the interrogation is terminated. He is in custody and I've begun the interrogation. Miranda is just the first step in the interrogation before I get to the other questions. Once he invokes, game over.

What would be the point in continuing to read the Miranda Rights form after he has invoked? It is an unequivocal declaration that he wants a lawyer before answering any questions.

ETA: Your Miranda Rights don't attach once the form is completely read to the suspect. They attach once a custodial interrogation begins. Therefore, if you are still reading the Miranda Rights to him and he invokes, then he has invoked his right to counsel.
I have always gone by this. Granted, we did not do allot of interrogation on the Surveillance Unit but I was a detective long before that.

I might add custodial accusatory questioning. And In that case we were advised by the LADA NOT to ask him if he would talk to the interviewer without an attorney. That can be asked later, but once asked then invoked a lawyer has to be there for him from then on. If your opinion is that he wanted an attorney for everything from then on then move on without questioning him!
 
#17 ·
I've seen it tried, but it didn't work. Of course, this was in a very conservative court where the judge didn't tolerate these antics. He saw something like this as being along the same lines of "ticket isn't legal cause he wasn't wearing his hat".

So, not meant to thread hijack, but I see these "not valid due to not wearing hat" comments all the time. What does this mean? The inference seems to be that if a patrol officer isn't wearing his hat he isn't "fully" in uniform and thus LE related work is not fully valid or some such.

Is this bull**** for real?

I am all for controls on police behavior that are meant to enhance the safety of them and those they come in contact with, as well as controls meant to preserve those rights guaranteed in the constitution.

But a fricking hat? Really? I'd be pissed as hell if I knew someone who was a genuine threat on the roads got off due to this.

And to be clear, I'm not heavily in the anti or pro cop crowd.

If I felt a traffic citation or arrest was in the wrong I'd fight it with everything I had to get that dropped. And whether by luck or just making choices that don't include actions that bring me into contact with police in their professional capacity, I lead a life that does not include frequent police interaction.
 
#21 ·
According to some internet 'lawyers' it is.
A feeble attempt to discredit the officer when there is nothing else to go with. If a attorney knows it is the dept's SOP to wear cover when outdoors and the officer wasn't wearing his cover he will argue the officer was not following directives.

Heard bout it, never really seen it first hand. Its more of a inside joke around here.
 
#22 ·
Geez, where the heck are you'll policing? Once they lawyer up, my partner blind sides them up the head with a phone book. They usually change their mind after that. :tongueout:


Only read Miranda a couple times on patrol and my CID days were spent with the D.A. and we didn't have that issue. if you have the evidence and testimony, no worries, cuff him up and send him to book in.

I would stop reading, explain how he blew his chance to explain, and tell him how the prosecutor will break it off at trial.
 
#23 ·
Once people invoke either silence or lawyer I stop and take them to jail. What would finishing the Miranda warnings do? They clearly already know their rights by invoking them. If anyone comes back in later they should read my report and notice they invoked one or bothe rights and plan accordingly. If they don't read my report before requestioning they better have a standard practice of re-Mirandizing anyway.
 
#24 ·
Seeing as to how we have different opinions amongst the members here on stopping vs. continuing to read Miranda is exactly the reason I posted this.

Just to give a bit more backstory, I work on a plain clothes human intelligence unit. Last night me and my partner rolled out to interview a guy that had been arrested earlier in the evening with burglary tools along the border. We suspected he was involved in bandit activity.

After he was processed it was determined that he was an aggravated felon (full gambit of rapes, controlled substance possession, CS w/ intent to distribute, burglary) who had a previous deportation. Based on this, our prosecutions unit was going to set him up for criminal prosecution for re-entering after deportation.

The two uniforms who were processing him initiated the casework and began to get a sworn statement from him on videotape. The first question they asked, as per our agency policy, before reading Miranda was "Are you under the influence of any mind altering substances, drugs, or alcohol?"

As soon as he was asked this, he said "I'm not answering any questions without a lawyer present." They stated "Subject has invoked his right to counsel at XXXX hours..." and stopped the tape and ended the interview.

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."

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.

Unfortunately (as it was brought up in another post of mine a few weeks ago), our "units" are very segregated from our patrol/uniformed guys. So we are not always on the same page and it is very likely and possible that someone in custody can be interviewed/questioned by three separate entities after their initial arrest unbeknownst to each entity.
 
#25 ·
Miranda only matters if there is testimonial evidence. If no questions were asked, and no answers resulted, the fact that the suspect was not provided with a Miranda warning is immaterial. Miranda is not an absolute requirement. In order for Miranda to matter you must not only have custody, but also interrogation. Since the suspect invoked his right to have counsel present during questioning, and patrol guys did the right thing and ceased questioning, it does not matter if the suspect was read the Miranda warning, "Goodnight Moon" or the latest thread from GNG.

This might, of course, be different based on state statute, state constitution or state case law. As a matter of fourth amendment jurisprudence, it does not matter whether you continue to read the warning or stop. What matters is that you do not ask any questions that might be construed as "interrogation" within the Miranda framework (i.e. it would still be OK to ask the suspect if he would like to have a cup of water, and if he ended up spilling his guts because you were so kind as to ask if he wanted water the statements would be perfectly admissible).
 
#26 · (Edited)
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.
 
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