Natty Shafer Law

Utah lawyer for criminal and immigration cases

Tag Archives: right to an attorney


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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.


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The Innocent Sometimes “Confess”

It’s one of the bigger frustrations for a criminal lawyer. No matter what the rest of the evidence says, most jurors cannot believe that innocent people confess to crimes they did not commit. The New York Times recently published a story on this subject. Oakland police suspected a 16-year old named Felix in a murder investigation. During interrogation, the police refused to let Felix talk to his mother, and questioned him until he finally cracked and started telling the police what he thought they wanted to hear. His confession was extremely poor—none of the details fit the crime scene—but he slowly incorporated subtle details the police gave him.

Felix was saved from having to explain his unfortunate confession to a jury because, as it turns out, he had an airtight alibi: on the day of the murder, Felix was locked in a juvenile detention facility. While Felix was spared, false confessions occur more often than the general public wants to admit. As The New York Times article goes on to say:

Psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill and mentally retarded, and suspects who are drunk or high. They are susceptible to suggestion, eager to please authority figures, disconnected from reality or unable to defer gratification. Children often think, as Felix did, that they will be jailed if they keep up their denials and will get to go home if they go along with interrogators. Mature adults of normal intelligence have also confessed falsely after being manipulated.

False confessions have figured in 24 percent of the approximately 289 convictions reversed by DNA evidence, according to the Innocence Project. Considering that DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions—and false confessions—surely exists.

The phenomenon of false confessions underscores a few things: 1) Police interrogation is serious business and it is very intimidating for the average citizen to endure. People who are susceptible to suggestions should never think about talking to the police alone. 2) The importance of getting a lawyer immediately cannot be overstated. Many people think they will get the police to see their point-of-view during an interrogation, but that isn’t a realistic expectation. The police interrogate suspects regularly who pretty much all say that they are innocent, but most suspects are novices at being interrogated. 3) Prospective jurors should be more skeptical of supposed confessions. The circumstances of a supposedly confession make a difference. But regardless of those circumstances, the police are going to show jurors the finished product: a tape recording or a written statement taken after many hours of continuous interrogation.


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Police Interrogation Is Not for Amateurs

The Supreme Court once again narrowed the Miranda rule with a decision released on Tuesday. In Howes v. Fields, the Court ruled that prisoner Randall Fields did not have to be given Miranda warnings, even though he was in jail for disorderly conduct when the police started interrogating him about his involvement in a possible sex crime. The Court, strangely enough, concluded that this interrogation was voluntary, even though Mr. Fields did not consent to the interview, he was not told he could remain silent, and he was denied his evening medications.

The Court said that it was reasonable for Mr. Fields to believe he could end the interview because the police told him that he was free to go back to his cell, but, as Mr. Fields testified, he did not believe them. Since the interrogation was involuntary from the beginning, I tend to believe Mr. Fields as to whether or not he could have really ended the interrogation. Obviously, the Supreme Court disagrees with me.

This Court decision underlies how important it is to request a lawyer anytime a police officer questions you. If it takes a lawyer to figure out whether or not you are actually “in custody,” I have no idea how a layperson is going to know. Despite what police officers may tell you, their goal is to get a confession. They are not there to help you, and they will work hard to avoid giving you a Miranda warning.

I have previously mentioned that there are a few questions you need to answer if a Utah or Salt Lake City police officer questions you. You need to provide your name and possibly some identification. Otherwise, invoke your right to silence and request a Utah State licensed lawyer familiar with criminal laws before you answer anything.


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Exercising Your Right to Silence Is Not Enough

In a post this week, I emphasized the importance of exercising your right to a lawyer, as soon as you are arrested. Some readers may have thought that it’s not necessary to immediately get a lawyer if you just stay quiet and exercise your right to silence.

Staying silent is a good start, but it’s insufficient. The Supreme Court has explicitly left open the possibility that suspects who have invoked their rights to silence can still change their minds. Suspects can show they’ve changed their minds by simply speaking. Once someone starts speaking, the floodgates have opened and the police can start or resume full-scale interrogation. Someone can explicitly tell police that they want to remain silent, but if they mention something related to their case—even if it’s only tangentially related—then they’ve legally shown their willingness to talk.

Also, police are allowed to re-approach someone who has already invoked their right to silence. If a reasonable time has passed, police officers are allowed to start talking to a suspect in the hope that they will have changed their mind. If they suspect starts talking, then as a far as the Supreme Court is concerned, they’ve obviously changed their mind. Some states have rules or laws prohibiting police officers from using either of these tactics, but Utah isn’t among them. Police departments in Utah are allowed to re-approach suspects who have invoked their right to silence, and they are allowed to start questioning suspects who change their mind, without confirming that they actually want to to relinquish their right to remain silent.

Invoking your right to an attorney is different, though. Once someone says they want a lawyer, all police questioning must stop. They aren’t allowed to re-approach the suspect, ever, without their attorney present. Suspects can’t casually change their minds either; suspects have to explicitly sign a waiver stating that they no longer want a lawyer. Getting a lawyer sooner, rather than later, is your best chance of minimizing any potential legal problems you may encounter.


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What to Do if You Have Been Arrested

If you are arrested, what you say can be critical. That’s why it’s very important that you request a lawyer immediately. In Utah, police only have to give you the customary Miranda Warning that you have the right to an attorney. No police department in Utah will advise you that it is a good idea that you get a lawyer; lawyers makes their job harder. (But we make it much better for you!)

Many people are reluctant to ask for a lawyer because they think that by asking for a lawyer, the police will think they are guilty. This next point is absolutely critical: if you have been arrested, the police already think you are guilty.

That point is so important that it bears restating. If the police have arrested you, they already think you are guilty, of at least something. You are not going to talk your way out of their suspicions. Do not try to convince the police of your innocence. Anything you say will likely make matters worse. You may unwittingly confirm your knowledge of the crime or you may admit to a related crime. Let a trained attorney do the talking for you. Whether you are in Utah or somewhere else in the United States, an attorney like me can steer you clear of the common traps that police lay for suspects.

Lying to police makes matters much worse. People forget that Martha Stewart went to jail for obstruction of justice, conspiracy, and making false statements. Those convictions stemmed from lying to federal officials and have little to do with the reasons she was initially investigated.

Next, do not trade momentary comfort for long term pain. Police in Salt Lake City and other jurisdictions are allowed to lie to you. They can tell you that if you just admit it, everything will be easier for you and you can go home. This is a whopper of a lie. The police may even let you go home immediately, but it won’t be easier for you. The criminal charges will still come. If you request a lawyer, it may take more of your time in the short term, but you will be better off in the long term.

Finally, be sure to make your request for a lawyer absolutely clear. If the police ask if you want a lawyer, say, “yes.” Do not qualify that statement in any way. You want a lawyer present. If the police start questioning you, tell them, “I want a lawyer present.” Do not make this a question. (E.g. “Should I get a lawyer?” or “Do you think I need a lawyer?”) Salt Lake County police departments know that they can continue to question you if you’ve made ambiguous requests for a lawyer. Only an unequivocal request for a lawyer will do.