Mike Kenny, attorney, Bauer, Crider, and Parry: So, the recap is the Miranda
warnings themselves have five specific portions that must be read to a
suspect. They have to be told they have the right to remain silent. They
have to be told that they have a right to an attorney. They have to be
told that if they can’t afford to hire one, one will be appointed
for them. They have to be told that they can exercise those rights at any time.
The setting where Miranda warnings have to be read: it has to be in a custodial
interrogation. Custodial meaning the person has to have his freedom of
movement limited in .a manner that is objectively reasonable. Like people
would expect. “Yeah, I can’t go. I’m not free to go.
I’m answering these questions.” Now, that particular aspect
is a very heavily litigated aspect. Because there are times that the officer’s
going to say, “Hey, listen. He wasn’t in custody. I was just,
you know, I was just walking up to him and we are having a consensual
encounter. This was just a normal conversation.”
So, the inquiry to whether, or not. a person is in custody is very fact-specific
and they look at the manner of questioning. They look at whether the person
was told he or she was free to leave. Whether the officers came up with
some show of force that would cause a reasonably objective person to believe
that he wasn’t as free to turn around walk away, or refuse to answer
questions. And the courts are going to look at all that to determine whether,
or not, that first box has been checked. “Is he in custody?”
And then the second box, which is a little bit easier – interrogation.
You know? Has he been asked questions designed to eliminate an incriminating
response? Well, they look at what was asked? How was the conversation
made? Is it that Christian burial speech which was clearly designed to
get this person in the backseat to feel remorseful? And say, “All
right. Let me tell you where the bodies are.” That is also heavily
But the biggest issue is is the person custody or nor? Because putting
handcuffs on you isn’t the only time a person is in custody. And
these Miranda warnings matter because what happens is that they’re
not read when they should have been, an admission to a crime is kept out
of evidence. Or, not even an admission to a crime, but maybe an admission
to being present when a crime was committed. Sometimes, you know, that’s
very important. Obviously, if a prosecutor is going to convict you of
a crime they’ve gotta prove that you were there. And just being
there puts you one step closer to committing the crime.in a law-enforcement
officer’s perspective, perhaps.
So, you get to keep all of that out, if a person should have been warned,
and they weren’t. It doesn’t make the crime go away. It doesn’t
mean that the arrest was bad. All it means is that the answers that you
may have given in response to interrogation should have been warned. And
because they weren’t, the cure is we keep those statements out.
That’s the punishment. It’s basically pursuant to the exclusionary
rule, they keep that set of factors out of evidence. A.nd this comes up
in every single crime there is. It comes up in DUI arrests. It comes up
in robbery arrests. It comes up in homicide cases. Sexual battery cases.
I can’t tell you how often in a sexual battery case the investigation
involves two people. Most the time, people don’t commit a sexual
battery in the middle of a football field. Most the time it happens, most
crimes,, most very serious crimes, happen away from public view. So, you
have one witnesses account, the victim, perhaps. And then you have what
the defendant said. What the suspect said. And there are plenty cases
where a suspect may be thinking he’s doing himself a lot of good
by saying, “I didn’t do anything. I didn’t touch her.
She was there, but we didn’t have sex.” But, maybe, he think
that’s very helpful. But it’s not helpful if a DNA test is
performed, and they actually find the suspect’s DNA. That just shows
that he lied. And lying, is maybe enough for this prosecutor to present
to the jury that this victim accuses him of a sexual battery. This person
lied about a consensual encounter. And this prosecutor would ask a question,
“Why on earth would he lie about had it not been because he was
afraid of getting caught?”
And that’s why it’s crucial, when a person gets contacted by
law enforcement, and they say, ”Hey, listen. We’re investigating
something. We need to answer some questions.” The first thing you
do is, is tell him. “Hey, listen. I don’t want to answer any
questions right now.” And you contact a lawyer. You find a lawyer.
You tell the lawyer what’s going on, and then that lawyer would
reach out to the law-enforcement officer to get an idea. “Is my
client suspect? Are you investigating his potential involvement in a crime?”
And then, we can make an educated decision on whether or not we’re
going to answer any questions, or answer no questions at all.
B: So, I mean, the best advice I’m hearing out of all this, is a
experienced criminal defense attorney, Mike. Those two, you know, first
important factors: the right to an attorney, and then the right to remain
silent. Those are the things that you recommend most. Right? Get the attorney.
M: Sometimes, yes. Everybody in the United States has a shield. And that
shield is the right to a lawyer, and that right to remain silent. Everybody
has that shield. The problem is that shield’s no good if it’s
sitting on your back and you’re not using. So, the Miranda warnings
are designed to let you know you’ve got the shield. You can use
it if you want. But the people have to understand that you’d better
use that shield.
M: It’s much better to decide later, after contemplation of looking
at what’s at stake, and looking at what the facts are, to decide
whether to answer a question. Than on a whim; not use your shield and
just walk into the lions’ den, as I’ve said.
B: All right. You’ve been listening to Mike Kinney floridadefense.com
podcast. That concludes our series on discussing the Miranda rights.