Man claims investigators violated his rights in de

[Swimmy]

Man claims investigators violated his rights in death case

FEDERAL law, under the 6th amendment to be precise, prevents police from questioning a criminal suspect when that suspect requests an attorney. That's what the U.S. Supreme Court has held, that's why when you're arrested, rather than invoke your 5th, request an attorney and then shut up. At that point, FEDERAL law prevents the police from talking with you until they have an attorney lined up. An exception is where you voluntarily commence talking with the police about the alleged crime. The federal law requires that the criminal suspect be apprehended first before these rights apply. Perhaps state law allows a greater right when the police are merely questioning you. I am not aware of such a law, but that does not mean such a law does not exist.

[thelma]

Let me see if I have this correct. Even if you are NOT placed under arrest and a Policeman states all he wants to do is "talk" to you and you are NOT considered a suspect, you still have the right NOT to talk to them and ask for a lawyer to be present. Right or wrong?

IF you are NOT placed under arrest, then technically you don't have to go anyplace with the Police. Right or wrong?

I also learned on a TV Program, that you also don't have to allow Policemen to come inside your home if they don't have a Warrant.

[Swimmy]

thelma said:

Let me see if I have this correct. Even if you are NOT placed under arrest and a Policeman states all he wants to do is "talk" to you and you are NOT considered a suspect, you still have the right NOT to talk to them and ask for a lawyer to be present. Right or wrong?

At the federal level, I'm pretty sure you have to be in police custody before your 5th and 6th amendment rights attach. At the state level, I'm not sure. I'll have to look into this more.

thelma said:

IF you are NOT placed under arrest, then technically you don't have to go anyplace with the Police. Right or wrong?

Depending on the circumstances this is correct, as long as your not in a situation where they CAN arrest you. Keep in mind though, if you refuse to cooperate, it can elevate an officer's suspicion. Depending on how you turn down their offer to go to the station with them to answer some questions, you could give them probable cause to arrest you. It's one area where I advocate the "if you have nothing to hide then you have no problem going with them" philosophy. No need to bring trouble on yourself when all you had to do was cooperate.

thelma said:

I also learned on a TV Program, that you also don't have to allow Policemen to come inside your home if they don't have a Warrant.

Unless the officers have probable cause, they cannot enter your home unless you invite them in. If they have probable cause to believe criminal activity is afoot, they don't need a warrant to enter your house. There are other exceptions to the warrant requirement. For example, an officer is driving by your house and sees you cooking meth from your living room window that is viewable to the public. That officer has probable cause to enter your house and even arrest you. Another example would be if your granddaughter robbed a bank and the police chased her all the way back to your house. Under the "hot pursuit" doctrine, the police do not have to wait for a warrant to enter and arrest your granddaughter, they can just enter.

Hopefully that wasn't too wishy-washy. There are a lot of factors in analyzing the law. Even though the text is black and white, it's application is not always black and white. It often depends on many factors.

[Ralph]

One thing I think needs to be clear, and correct me if I am wrong Swimmy.

You can be arrested in some circumstances and not have to be read your rights. Such as for drunk and disorderly, I tried explaining this to my daughter once when she was arrested.

If you are not being questioned for a crime, Miranda does not apply.

[wcup102]

After yopu ,irandize a suspect and he requests an attorney, technically(legally) you can not question him any further except for general arrest infor like name adrress and date of birth, for processing. If the suspect continues to voluntarily make statements pertaining to the case, those can be noted and put on an oral admission form which can be used against him. Alot of times suspects, unless they know the game, want to exalt themselves and "plead" their case that they only did it because..... or ifyou were me you would have done the same thing.......etc. Sometimes when you arrive at a scene, the suspect may be ranting or trying to explain his side which also can used against him. Those are referred to as spontaneous utterances, alot like the oral admission statements.

[Swimmy]

Ralph,

I do not know whether that is true. Wcup102 would probably have a better knowledge on that one. I was under the impression that if you were arrested you had to be read your Miranda Rights.

But the more I think about it, I remember my criminal procedure professor saying that Miranda Rights reached their peak with the Miranda case. Be that as it may, I suspect that many courts would allow for an un-Mirandized defendant's statements to be heard because of all the cop/law shows and everyone today can just about recite all of them.

The key component, as was my understanding, is whether you are in police custody (under arrest). In other words, they could question you without Mirandizing you if they did not place you under arrest. For example, if they are just conducting an investigation and ask you to come to the station to answer some questions and you comply, they do not have to Mirandize you because you are not under arrest and are free to leave at any time.

[frankcor]

I think Martha Stuart demonstrated that if a federal prosecutor ever invites you down to the station to answer some questions, don't go. Nothing good can ever come of it.

Of course, the bigger lesson was: if you do go, don't lie.

[thelma]

Bottom Line: I'll never forget the advice a criminal lawyer gave me when I was working for him - DON'T EVER LIE! I'm still naive enough to believe that if you tell the truth, the truth will protect you from harm.