Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Another Reason Not to Talk to Police

With yesterday’s decision, Salinas v. Texas, the Supreme Court has unwittingly shown once again why you should never talk to the police. The defendant in that case, Genovevo Salinas, went into the police station with the understanding the police were trying to clear him as a suspect. As should be clear from the record, the police had no intention of clearing him. They wanted him to incriminate himself. Salinas continued answering their questions until the police asked if the shotgun in his home “would match the shells recovered at the scene of the murder.” At that point Salinas stopped talking.

At his trial, the prosecutor used Salinas’ silence as proof he was guilty. He asked the jury to infer that an innocent person would have protested their innocence. It should go without saying that for the privilege against self-incrimination to mean anything, silence cannot be proof of a person’s guilt. With yesterday’s decision, the Supreme Court said there was nothing improper about the prosecutor’s comments. According to the Court, Salinas needed to specifically state the magic words, “I’m going to exercise my right to remain silent.”

How a non-lawyer is supposed to know what magic words to utter is beyond me. There are just too many things a layperson cannot know and therefore should never attempt to talk to the police without a lawyer. This is equally true if you are innocent. Remember, the police already think you are guilty, or they would not be investigating you. No matter how eloquent you think you are, the police have more practice at interrogation.


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Demystifying Miranda

There are many misconception about the Miranda warnings police officers are supposed to give suspects after an arrest. Television and movies have done a pretty good job of educating the public about what they say, but a pretty poor job of educating the public about when they are required and what happens if an officer doesn’t give a Miranda warning. Unfortunately, this means that the average person thinks they know exactly what the warnings require, but in all likelihood, they do not. Let’s take a look at each item, one at a time.

You’ve almost certainly heard the Miranda warnings at some point in your life. In Miranda v. Arizona, the Supreme Court laid out the information that a warning needs to contain: 1) a suspect has a right to remain silent; 2) that anything a suspect says can and will be used against them in court; 3) a suspect has the right to an attorney during questioning; and 4) if the suspect cannot afford an attorney, one will be appointed for them. Police departments and individual officers can vary the wording a little, but that basic information must be conveyed, and the suspect has to understand the information. That’s simple enough and your average person knows this already.

It a bit more complicated to determine when they are required. Some people I’ve encountered believe they are required whenever someone is arrested and others believe the police have to give them whenever they want to question a suspect. Neither of those things are true. The truth is that the police must give Miranda warnings when they want to question a suspect they have already arrested. If no one is under arrest or the police have no intention of questioning anyone, then the warnings aren’t required.

Just to be clear, Miranda warnings are only required when a suspect has been arrested and the police want to question them.

The thorny issue is when someone is actually under arrest. Obviously, if the police handcuff you and tell you that you’re under arrest, then you’re under arrest. But sometimes courts will find that someone was under arrest even though the police had not formally arrested the suspect at the time. This is done to keep officers honest so they can’t interrogate a suspect they were going to arrest anyway. To determine this, the courts will look at many factors, such as whether a reasonable person would feel they could leave. That’s why it’s a good idea whenever a police officer is questioning you to ask if you are free to leave.

Finally, let’s discuss the remedy. Many people are also under the mistaken notion that if someone wasn’t read the Miranda rights, then the case will be dismissed. This almost never happens. Instead, statements made to the police after arrest but before a Miranda warning are inadmissible in court. Often a prosecutor will build a case without using the incriminating statements, or the prosecutor will move forward with a lesser charge.