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the police say… What

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22.11.2018

Content:

  • the police say… What
  • Criminal Arrests and Interrogations FAQ
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  • The only thing they actually have to say is “you are under arrest”. Do police officers ever feel bad about arresting someone? As a police officer, what's the strangest thing someone said while being arrested?. In the United States, the Miranda warning is a type of notification customarily given by police to . The duty to warn only arises when police officers conduct custodial interrogations. The Constitution does not require that a defendant be advised. An arrest is the act of apprehending a person and taking them into custody, usually because Police and various other officers have powers of arrest. . You do not have to say anything, but it may harm your defence if you do not mention.

    the police say… What

    The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. Arizona , the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment and the Sixth Amendment right to counsel , through the incorporation of these rights into state law.

    The concept of " Miranda rights" was enshrined in U. Arizona Supreme Court decision, which found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for armed robbery, kidnapping, and rape of a mentally handicapped young woman Miranda was subsequently retried and convicted, based primarily on his estranged ex-partner, who had been tracked down by the original arresting officer via Miranda's own parents, suddenly claiming that Miranda had confessed to her when she had visited him in jail; Miranda's lawyer later confessed that he 'goofed' the trial [4].

    The circumstances triggering the Miranda safeguards, i. Miranda rights, are "custody" and "interrogation". Custody means formal arrest or the deprivation of freedom to an extent associated with formal arrest. Interrogation means explicit questioning or actions that are reasonably likely to elicit an incriminating response.

    The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, the Court did create a set of guidelines that must be followed. McCarty , the Supreme Court decided that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda , regardless of the nature or severity of the offense of which they are suspected or for which they were arrested.

    As a result, American English developed the verb Mirandize , meaning "read the Miranda rights to" a suspect when the suspect is arrested. Notably, the Miranda rights do not have to be read in any particular order, and they do not have to precisely match the language of the Miranda case as long as they are adequately and fully conveyed California v. Prysock , U. Thompkins , the Supreme Court held that unless a suspect expressly states that they are invoking this right, subsequent voluntary statements made to an officer can be used against them in court, and police can continue to interact with or question the alleged criminal.

    The typical warning states: The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if they understand their rights.

    Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?

    An arrestee's silence is not a waiver, but on June 1, , the Supreme Court ruled 5—4 that police are allowed to interrogate suspects who have invoked or waived their rights ambiguously, and any statement given during questioning prior to invocation or waiving is admissible as evidence. While the exact language above is not required by Miranda , the police must advise the suspect that:.

    There is no precise language that must be used in advising a suspect of their Miranda rights. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape. The Supreme Court has resisted efforts to require officers to more fully advise suspects of their rights.

    For example, the police are not required to advise the suspect that they can stop the interrogation at any time, that the decision to exercise the right cannot be used against the suspect, or that they have a right to talk to a lawyer before being asked any questions. Nor have the courts required to explain the rights.

    For example, the standard Miranda right to counsel states You have a right to have an attorney present during the questioning. Police are not required to explain that this right is not merely a right to have a lawyer present while the suspect is being questioned. The right to counsel includes:. Miranda warnings, are "custody" and "interrogation". Suspects in "custody" who are about to be interrogated must be properly advised of their Miranda rights—namely, the Fifth Amendment right against compelled self incrimination and, in furtherance of this right, the right to counsel while in custody.

    The Sixth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent—the right to refuse to answer questions or to otherwise communicate information. The duty to warn only arises when police officers conduct custodial interrogations. The Constitution does not require that a defendant be advised of the Miranda rights as part of the arrest procedure, or once an officer has probable cause to arrest, or if the defendant has become a suspect of the focus of an investigation.

    Custody and interrogation are the events that trigger the duty to warn. Some jurisdictions provide the right of a juvenile to remain silent if their parent or guardian is not present. Some departments in New Jersey , Nevada , Oklahoma , and Alaska modify the "providing an attorney" clause as follows:. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.

    Even though this sentence may be somewhat ambiguous to some laypersons, who can, and who have actually interpreted it as meaning that they will not get a lawyer until they confess and are arraigned in court, the U. Supreme Court has approved of it as an accurate description of the procedure in those states.

    In states bordering Mexico, including Texas , New Mexico , Arizona , and California, suspects who are not United States citizens are given an additional warning: If you are not a United States citizen, you may contact your country's consulate prior to any questioning. Some states including Virginia require the following sentence, ensuring that the suspect knows that waiving Miranda rights is not a one-time absolute occurrence: You can decide at any time from this moment on to terminate the interview and exercise these rights.

    An affirmative answer to both of the above questions waives the rights. If the suspect responds "no" to the first question, the officer is required to re-read the Miranda warning, while saying "no" to the second question invokes the right at that moment; in either case the interviewing officer or officers cannot question the suspect until the rights are waived. Generally, when defendants invoke their Fifth Amendment right against self-incrimination and refuse to testify or submit to cross-examination at trial, the prosecutor cannot indirectly punish them for the exercise of a constitutional right by commenting on their silence and insinuating that it is an implicit admission of guilt.

    Under the Uniform Code of Military Justice , Article 31 [27] provides for the right against compelled self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department of the Army Form , which informs them of the charges and their rights, and the subjects must sign the form.

    The United States Navy and United States Marine Corps require that all arrested personnel be read the "rights of the accused" and must sign a form waiving those rights if they so desire; a verbal waiver is not sufficient. It has been discussed [ by whom? For example, "the right to remain silent" means little to a deaf individual and the word "constitutional" may not be understood by people with only an elementary education.

    In one case, a deaf murder suspect was kept at a therapy station until he was able to understand the meaning of the Miranda warning and other judicial proceedings.

    The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. The Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment. Assuming that the six requirements are present and Miranda applies, the statement will be subject to suppression unless the prosecution can demonstrate:.

    The defendant may also be able to challenge the admissibility of the statement under provisions of state constitutions and state criminal procedure statutes.

    It is important to note that immigrants who live in the United States illegally are also protected and should receive their Miranda warnings as well when being interrogated or placed under arrest. The Fifth Amendment right to counsel, a component of the Miranda Rule, is different from the Sixth Amendment right to counsel.

    In the context of the law of confessions the Sixth Amendment right to counsel is defined by the Massiah Doctrine Massiah v. United States , U. Simply advising the suspect of their rights does not fully comply with the Miranda rule. The suspect must also voluntarily waive their Miranda rights before questioning can proceed. These include questions designed to establish that the suspect expressly waived their rights.

    Typical waiver questions are. The waiver must be "knowing and intelligent" and it must be "voluntary". These are separate requirements.

    To satisfy the first requirement the state must show that the suspect generally understood their rights right to remain silent and right to counsel and the consequences of forgoing those rights that anything they said could be used against them in court.

    To show that the waiver was "voluntary" the state must show that the decision to waive the rights was not the product of police coercion. If police coercion is shown or evident, then the court proceeds to determine the voluntariness of the waiver under the totality of circumstances test focusing on the personal characteristics of the accused and the particulars of the coercive nature of the police conduct.

    The ultimate issue is whether the coercive police conduct was sufficient to overcome the will of a person under the totality of the circumstances. As noted previously, courts traditionally focused on two categories of factors in making this determination: However, the Supreme Court significantly altered the voluntariness standard in the case of Colorado v.

    Thus, a waiver of Miranda rights is voluntary unless the defendant can show that their decision to waive their rights and speak to the police was the product of police misconduct and coercion that overcame the defendant's free will.

    After Connelly , the traditional totality of circumstances analysis is not even reached unless the defendant can first show such coercion by the police. Essentially this means the prosecution must prove that the suspect had a basic understanding of their rights and an appreciation of the consequences of forgoing those rights.

    The focus of the analysis is directly on the personal characteristics of the suspect. If the suspect was under the influence of alcohol or other drugs, or suffered from an emotional or mental condition that substantially impaired their capacity to make rational decisions, the courts may well decide that the suspect's waiver was not knowing and intelligent.

    A waiver must also be clear and unequivocal. An equivocal statement is ineffective as a waiver and the police may not proceed with the interrogation until the suspect's intentions are made clear. The requirement that a waiver be unequivocal must be distinguished from situations in which the suspect made an equivocal assertion of their Miranda rights after the interrogation began.

    Any post-waiver assertion of a suspect's Miranda rights must be clear and unequivocal. If the suspect's assertion is ambiguous, the interrogating officers are permitted to ask questions to clarify the suspect's intentions, although they are not required to.

    Requesting an attorney prior to arrest is of no consequence because Miranda applies only to custodial interrogations. The police may simply ignore the request and continue with the questioning; however, the suspect is also free to leave. If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless they have "scrupulously honored" the defendant's assertion and subsequently obtained a valid waiver before resuming the interrogation.

    The most important factors are the length of time between termination of the original interrogation and the commencement of the second, and issuing a new set of Miranda warnings before resumption of interrogation. The consequences of assertion of Sixth Amendment right to counsel are stricter.

    Thompkins , the Supreme Court declared in a 5—4 decision that criminal defendants who have been read their Miranda rights and who have indicated they understand them and have not already waived them , must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police for that protection against self-incrimination to apply.

    If they speak to police about the incident before invoking the Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police. Those who oppose the ruling contend that the requirement that the defendant must speak to indicate his intention to remain silent further erodes the ability of the defendant to stay completely silent about the case.

    This opposition must be put in context with the second option offered by the majority opinion, which allowed that the defendant had the option of remaining silent, saying: Absent the former, "anything [said] can and will be used against [the defendant] in a court of law".

    Assuming that the six factors are present, the Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. Arguably only the last is a true exception—the first two can better be viewed as consistent with the Miranda factors.

    For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered "interrogation" under Miranda because they are not intended or likely to produce incriminating responses.

    Nonetheless, all three circumstances are treated as exceptions to the rule. The jail house informant exception applies to situations where the suspect does not know that he is speaking to a state-agent; either a police officer posing as a fellow inmate, a cellmate working as an agent for the state or a family member or friend who has agreed to cooperate with the state in obtaining incriminating information.

    The "public safety" exception is a limited and case-specific exception, allowing certain unadvised statements given without Miranda warnings to be admissible into evidence at trial when they were elicited in circumstances where there was great danger to public safety; thus, the Miranda rule provides some elasticity.

    The public safety exception derives from New York v. Quarles , a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a rape suspect who was thought to be carrying a firearm. The arrest took place during the middle of the night in a supermarket that was open to the public but apparently deserted except for the clerks at the checkout counter.

    When the officer arrested the suspect, he found an empty shoulder holster, handcuffed the suspect, and asked him where the gun was. The suspect nodded in the direction of the gun which was near some empty cartons and said, "The gun is over there". The Supreme Court found that such an unadvised statement was admissible in evidence because "[i]n a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer".

    Under this exception, to be admissible in the government's direct case at a trial, the questioning must not be "actually compelled by police conduct which overcame his will to resist", and must be focused and limited, involving a situation "in which police officers ask questions reasonably prompted by a concern for the public safety".

    In , the Federal Bureau of Investigation encouraged agents to use a broad interpretation of public safety-related questions in terrorism cases, stating that the "magnitude and complexity" of terrorist threats justified "a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case", continuing to list such examples as: A Department of Justice spokesman described this position as not altering the constitutional right, but as clarifying existing flexibility in the rule.

    Prosecutors initially argued for this exception to be applied [74] to the hour interrogation of Dzhokhar Tsarnaev in connection with the Boston Marathon bombings. The New York Court of Appeals upheld the exception in a murder case, People v Doll , [77] where a man with blood on his clothes was detained and questioned.

    The window of opportunity for the exception is small. Once the suspect is formally charged, the Sixth Amendment right to counsel would attach and surreptitious interrogation would be prohibited. Assuming that a Miranda violation occurred—the six factors are present and no exception applies—the statement will be subject to suppression under the Miranda exclusionary rule. However, the statement can be used to impeach the defendant's testimony.

    For example, suppose the police continue with a custodial interrogation after the suspect has asserted his right to silence. During his post-assertion statement the suspect tells the police the location of the gun he used in the murder. Using this information the police find the gun. Forensic testing identifies the gun as the murder weapon, and fingerprints lifted from the gun match the suspect's. The contents of the Miranda-defective statement could not be offered by the prosecution as substantive evidence, but the gun itself and all related forensic evidence could be used as evidence at trial.

    Although the rules vary by jurisdiction, generally a person who wishes to contest the admissibility of evidence [84] on the grounds that it was obtained in violation of his constitutional rights [85] must comply with the following procedural requirements:.

    Failure to comply with a procedural requirement may result in summary dismissal of the motion. The judge hears evidence, determines the facts, makes conclusions of law and enters an order allowing or denying the motion. In addition to Miranda, confession may be challenged under the Massiah Doctrine, the Voluntariness Standard, Provisions of Federal and State rules of criminal procedure and State Constitutional provisions.

    The Massiah Doctrine established by Massiah v. United States prohibits the admission of a confession obtained in violation of the defendant's Sixth Amendment right to counsel. Specifically, the Massiah rule applies to the use of testimonial evidence in criminal proceedings deliberately elicited by the police from a defendant after formal charges have been filed. The events that trigger the Sixth Amendment safeguards under Massiah are 1 the commencement of adversarial criminal proceedings and 2 deliberate elicitation of information from the defendant by governmental agents.

    The Sixth Amendment guarantees a defendant a right to counsel in all criminal prosecutions. The purposes of the Sixth Amendment right to counsel are to protect a defendant's right to a fair trial and to assure that the adversarial system of justice functions properly by providing competent counsel as an advocate for the defendant in his contest against the "prosecutorial forces" of the state. The Sixth Amendment right "attaches" once the government has committed itself to the prosecution of the case by the initiation of adversarial judicial proceedings "by way of formal charge, preliminary hearing, indictment, information or arraignment".

    A critical stage is "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial". Government attempts to obtain incriminating statement related to the offense charged from the defendant by overt interrogation or surreptitious means is a critical stage and any information thus obtained is subject to suppression unless the government can show that an attorney was present or the defendant knowingly, voluntarily and intelligently waived his right to counsel.

    Deliberate elicitation is defined as the intentional creation of circumstances by government agents that are likely to produce incriminating information from the defendant. The definition of "deliberate elicitation" is not the same as the definition of "interrogation" under the Miranda rule. Miranda interrogation includes express questioning and any actions or statements that an officer would reasonably foresee as likely to cause an incriminating response.

    Massiah applies to express questioning and any attempt to deliberately and intentionally obtain incriminating information from the defendant regarding the crime charged. The difference is purposeful creation of an environment likely to produce incriminating information Massiah and action likely to induce an incriminating response even if that was not the officer's purpose or intent Miranda. As noted, information obtained in violation of the defendant's Sixth Amendment right to counsel is subject to suppression unless the government can establish that the defendant waived his right to counsel.

    The waiver must be knowing, intelligent and voluntary. The voluntariness standard applies to all police interrogations regardless of the custodial status of the suspect and regardless of whether the suspect has been formally charged. The remedy for a violation of the standard is complete suppression of the statement and any evidence derived from the statement.

    The statement cannot be used as either substantive evidence of guilt or to impeach the defendant's testimony. Further the rights to be free from coerced confession cannot be waived nor is it necessary that the victim of coercive police conduct assert his right. In considering the voluntariness standard one must consider the Supreme Court's decision in Colorado v. Before Connelly the test was whether the confession was voluntary considering the totality of the circumstances.

    Every state constitution has articles and provision guaranteeing individual rights. With regard to Miranda issues, state courts have exhibited significant resistance to incorporating into their state jurisprudence some of the limitations on the Miranda rule that have been created by the federal courts.

    Practically every aspect of the Miranda rule has drawn state court criticism. However the primary point of contention involve the following limitations on the scope of the Miranda rule: In addition to constitutionally based challenge, states permit a defendant to challenge the admissibility of a confession on the grounds that the confession was obtained in violation of a defendant's statutory rights. For example, North Carolina Criminal Procedure Act permits a defendant to move to suppress evidence obtained as a result of a "substantial" violation of the provision of the North Carolina Rules of Criminal Procedure.

    Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure—in the Dickerson decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture".

    While arrests and interrogations can legally occur without the Miranda warning being given, this procedure would generally make the arrestee's pre-Miranda statements inadmissible at trial. However, pursuant to the plurality opinion in United States v. Patane , physical evidence obtained as a result of pre-Miranda statements may still be admitted. There was no majority opinion of the Court in that case. In some jurisdictions, [ where?

    In those situations, a person's statements made to police are generally admissible even though the person was not advised of their rights. Similarly, statements made while an arrest is in progress before the Miranda warning was given or completed are also generally admissible. Because Miranda applies only to custodial interrogations, it does not protect detainees from standard booking questions such as name and address.

    Because it is a protective measure intended to safeguard the Fifth Amendment right against self-incrimination, it does not prevent the police from taking blood without a warrant from persons suspected of driving under the influence of alcohol.

    Such evidence may be self-incriminatory, but are not considered statements of self-incrimination. If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that they may be charged with while in custody.

    He invoked his Miranda rights on the cow case. In a murder case it is not necessary to reveal the victim's identity. The primary point of inquiry is whether the accused can reasonably be supposed to have understood the reason for the investigation. Failure to inform the accused that he is "arrested" and charged with a specific offence may not be fatal where the accused understood the basis for his apprehension and the extent of his jeopardy. To understand the extent of jeopardy it is not necessary to be aware of the precise charge face or the full extent of the details of the case.

    Script The arresting officer must inform the accused of the charges and their right to counsel. Typically, the officer will read from a script such as:. You have the right to retain and instruct counsel without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number s ] during business hours and [toll-free phone number s ] during non-business hours.

    Upon arrest the peace officer should inform the accused of their right to silence and right against self-crimination protected under section 7 and section 11 c of the Charter. I wish to give you the following warning: You need not say anything.

    You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do or say may be used as evidence. Where there had been previous communication between the police and accused prior to the reading of the first police warning, the police will usually provide what is called a "secondary caution" or "warning" that informs the accused that nothing said by the police prior to the first warning should influence the accused in the decision to make a statement.

    This is to avoid the tainting and exclusion of potential statement as "derived statements" following a previously involuntary statement.

    Criminal Arrests and Interrogations FAQ

    If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. (There are exceptions. You do not have to go with a police officer to be in a line up or to give them your DNA even if the police say they think you have broken the law. You should talk. The police can use anything you say to them at any time. You don't have to be at a police station being interviewed for the information you provide to be used as.

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    Comments

    supermaksi223

    If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. (There are exceptions.

    eroldee

    You do not have to go with a police officer to be in a line up or to give them your DNA even if the police say they think you have broken the law. You should talk.

    JATRIX

    The police can use anything you say to them at any time. You don't have to be at a police station being interviewed for the information you provide to be used as.

    fomchikmega

    The police have to follow strict rules if you're arrested, questioned or charged with a get free legal advice; tell someone where you are; have medical help if.

    valensi922

    If you are approached or questioned by a police officer in plain clothes, they should be able to tell you what police station they come from and show you their .

    lolacola

    Once you have been interviewed, you and your lawyer may provide the Police with a statement of what you say happened. It would be rare to do that, but it.

    vladyka

    Keep your hands where police can see them. Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a .

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