Fifth Amendment

FIFTH AMENDMENT

WHEN IS A MIRANDA VIOLATION NOT A MIRANDA VIOLATION?

Daniel Horowitz is a certified criminal defense specialist practicing in Oakland, California.

His practice is both federal (nationwide) and state. Horowitz is AV rated (highest rating) by Martindate-Hubbell.

"You have the right to remain silent. Anything you say can be used against you ..."

These words were once the magic talisman that decided whether or not a person’s statement could or could not be used against him. Miranda warnings are designed to ensure that the Fifth Amendment right to remain silent (and related constitutional rights) are explained to every person. There was a time when most people did not know what their Fifth Amendment rights were. Now, most people are at least a bit familiar with their "Miranda" warning rights.

Many people don’t know that this Miranda warning does NOT have to be given all the time. It only has to be given when a person is "in custody". There are hundreds of cases discussing when a person is or is not "in custody". If you are a suspect and the police ask to speak with you they do not have to give you a Miranda warning. This is true even if you are a suspect in the case.

In 1985 the United States Supreme Court weakened the Miranda rule by stating that a Miranda violation prevents the prosecution from initiating the use of the statement at trial but if the defendant testifies the statement obtained in violation of Miranda can be used to impeach (contradict) the witness. (See: Oregon v. Elstad 470 U.S. 298, 307 (1985)

Also, if a person has his rights violated under Miranda but later is given valid warnings and freely agrees to speak, his second statement can be admitted for all purposes.

Abuse of these rules are common. Police will purposely ignore Miranda and just extract a statement. Later they will try and get a "clean" statement by giving proper warnings. It is a no lose situation for them because they can always use the statement for impeachment and a lot of times they can follow up and get a "clean" statement as well.

The courts are starting to stop this abuse.

The California Supreme Court in People v. Neal, 1 Cal.Rptr.3d 650 (Cal., Jul 14, 2003) found that a statement was coerced and could not be used for any purpose.

A statement taken in violation of Miranda can be voluntary. This may sound strange but if a person knows his rights but isn’t read his rights by the police officer, the violation is technical but there is no coercion. Also, a person might want to talk no matter what and in reality it might not matter if he was given his rights or not. Again, this is a Miranda violation but it is not coercion.

In the Neal case the court found coercion which blocks the Oregon v. Elstad exceptions to the Miranda exclusionary rule.

The opinion in Neal relates how that the officer "in deliberate violation of Miranda in spite of defendant's repeated invocation of both his right to remain silent and right to counsel--indeed, as we shall see, defendant nine times requested to speak with an attorney interrogation of defendant, intentionally continued interrogation of defendant ..." (Neal at 652)

Now the behavior of the officer in Neal was extreme but this author is pleased to see the pendulum swinging back to the middle.

Attorney at Law

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