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Miranda warning — SAY “I want a Legal Aid Lawyer or I want a lawyer/ Attorney” —AND don’t engage in a conversation or  answer any questions.

The Miranda warning (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. In Miranda v. Arizona, the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called “Miranda rights”), and makes a knowing, intelligent and voluntary waiver of those rights.[Note 1] The Miranda warning is not a condition of detention, but rather a safeguard against self-incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial.

Under the U.S. Supreme Court decision in Berghuis v. Thompkins suspects retain their 5th Amendment right to remain silent, however, if a suspect waives this right and interrogation begins, the right to halt further interrogation by the police must be exercised explicitly, by revoking the prior waiver of this 5th Amendment right.

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SAY “I want a Legal Aid Lawyer or I want a lawyer/ Attorney”  —AND KEEP YOUR MOUTH SHUT” and  invoke your right to counsel.

Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a suspect has the right to counsel during a custodial interrogation. The People have a heavy burden of establishing that a defendant knowingly and voluntarily waived his right to counsel (Miranda, 384 U.S. at 475; People v. Ramos, 40 NY2d 610 [1976]). The right to counsel attaches when a suspect in custody unequivocally requests an attorney (People v. Cunningham, 49 NY2d 203 [1980]). Once a defendant requests the assistance of an attorney, the police are obligated to “scrupulously honor that request” and cease questioning (People v. Stroh, 48 NY2d 1000,1001 [1980]; see also Miranda, 384 U.S. at 474-75). Any further questioning by police in the absence of an attorney is unlawful (see Stroh, 48 NY2d at 1001; People v. Jones, 21 AD3d 429 [2d Dept. 2005]). Upon the invocation of counsel, “any purported waiver of that right obtained in the absence of counsel is ineffective” (see People v. Glover, 87 NY2d 838, 839 [1995]; see also People v. Esposito, 68 NY2d 961 [1986]; Cunningham, 49 NY2d at 210 [uncounseled waiver of constitutional right not deemed voluntary if made after right to counsel invoked]).

In order for a suspect to invoke the right to counsel under Miranda, his invocation must be unequivocal. When a defendant’s request is ambiguous or equivocal, the right to counsel does not attach (see People v. Hicks, 69 NY2d 969 [1987]; People v. D’Eredita, 302 AD3d 925 [4th Dept. 2003]; People v. Pinkney, 48 AD3d [2d Dept. 2008]; People v. Ashraf, 186 AD2d 1057 [4th Dept. 1992] [all holding that defendant’s inquiry as to whether he should get attorney not unequivocal request]). There must be, at minimum, some statement that can be reasonably construed as a request for an attorney (McNeil v. Wisconsin501 U.S. 171 [1991]). “Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” (Glover, 87 NY2d at 839; see also Jones, 21 AD3d at 429).

In People v. Dehmler, 188 AD2d 1056 (4th Dept. 1992), also cited by the People, the court found that defendant’s inquiry, “Can I call a lawyer?” did not constitute an unequivocal intention to retain counsel.

“I have counsel[attorney],” during the administration of Miranda rights. The court held that defendant’s statement did not constitute an invocation of the right to counsel.

ATTORNEY ADVERTISING: Information herein and is not intended to be, legal advice. This sample legal document is provided as part of a free public educational service by Zachary Irtaza Riyaz, Esq., attorney at law in the State of New York (Westhampton – Tel. 516-234-0348), for reference only. IT IS NOT INTENDED TO GIVE LEGAL ADVICE ABOUT A SPECIFIC LEGAL PROBLEM, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Due to the importance of the individual facts of every case, the generalizations I make may not necessarily be applicable to any particular case. Statutes and codes such as Domestic Relations Law (DRL)are frequently amended and may affect the validity of the above legal document and no representation is made that the above sample is going to be enforceable in the future. Changes in the law could at any time make parts of this web site content obsolete.  Updated statutes and codes may be available at the New York State Legislature Website. No statute or sample legal document should be relied on without understanding controlling case law which may further interpret it. THIS INFORMATION IS PROVIDED WITH THE UNDERSTANDING THAT IF LEGAL ADVICE IS REQUIRED THE SERVICES OF A COMPETENT ATTORNEY SHOULD BE CONSULTED.



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