Michigan Criminal Attorneys Blog
The typical Miranda Warnings read by a police officer when an individual is placed into custody include:
- You have the right to remain silent;
- Anything you say or do may be used against you in a Court of law;
- You have the right to consult with a lawyer before speaking to the police and to have a lawyer present during questioning;
- If you cannot afford a lawyer, one will be appointed for you before any questioning if you request;
- If you decide to answer questions without a lawyer present, you have the right to stop answering questions at any time.
The Miranda warnings can simply be read to an individual. However, often a detective will have the individual sign a form that contains all the Miranda Warnings, and initial each right that the individual has, in order to establish that the waiver was knowingly, freely, voluntarily, and intelligently made. Whenever a Miranda issue arises, it is best to not make any statements and consult with an experienced criminal defense lawyer.
The Fifth Amendment of the United States Constitution and the Michigan Constitution guarantee the right against self incrimination. To determine whether or not an individual validly waives his or her rights requires an evaluation of the totality of the circumstances, which includes: the individual’s: age; education; background; intelligence; whether or not he or she is capable of understanding the warnings, the nature of the rights, and the consequences of waiving his or her Constitutional rights (for example, an individual may be too intoxicated to be able to waive his or her rights, or may have suffered an emotional or mental condition that substantially impaired his or her capacity to make rational decisions).
It is important to remember that Miranda warnings only apply to persons that are in custody or otherwise deprived of freedom of action in a significant way. The analysis by the Court involves a determination as to whether, under the totality of the circumstances, the individual would have reasonably believed that he or she was not free to leave. This is an objective determination by the Court, and not based upon the subjective belief of the particular individual. Relevant factors to determine whether or not an individual is in custody include: the location of the questioning; the duration of the questioning; statements made during the interview; the presence of absence of physical restraints; the release of the individual at the end of the questioning.
An officer approaching a person and seeks voluntary cooperation through noncoercive questioning is viewed as noncustodial unless there are intimidating circumstances leading to the individual to believe that he or she was not free to leave. The Fourth Amendment is typically not implicated until the officer interferes with the individual’s attempt to leave, at which time the officer must have reasonable suspicion to make an investigatory stop. A initial traffic stop for speeding or other violation is viewed by Courts as noncustodial.
It is recommended that if you are being questioned about a crime that you firmly and clearly assert your right to remain silent and right to counsel. A waiver must be clear an unequivocal. If the individual is ambiguous (for example, a statement such as or similar to “maybe I want a lawyer”), the interrogating officers are allowed to ask questions to clarify the individual’s intentions, or the officers may simply ignore the ineffective assertion and continue with the custodial interrogation.
An individual always needs to remember a few things about the questioning of police officers. First, the officer is trained in questioning individuals and eliciting confessions. Second, the job of the police officer is to build a case, and if the police believe the person is a suspect they will work hard to build the case against that person. Third, any admissions and/or inconsistencies will be used against the person questioned. Importantly, these admissions and/or inconsistencies frequently lead to a conviction. Fourth, there are many instances in which a prosecution would not have commenced but for a statement that was made by a suspect.
If a statement is made to law enforcement a Defendant in a criminal case, through his or her attorney, can challenge whether a statement can be admitted based upon a violation of the Miranda warnings. This type of a hearing is called a Walker hearing. A Walker hearing involves the testimony of the police officer or detective who elicited a statement against interest made by the Defendant. The prosecution has the burden of proving the statement or statements are admissible. The defense is allowed to cross examine any witness called by the prosecution. The defense can call witnesses to support the suppression of the evidence. Defense witnesses could include other eyewitnesses to the statement in question, expert witnesses to testify whether or not the Defendant had the capability to waive his or her rights, and testimony from the Defendant. If the Defendant elects to testify, his or her testimony is subject to cross examination and can be used for impeachment purposes against him or her at trial.
If the lawyer prevails at the Walker hearing, the statement made by the Defendant is not allowed to be considered against him or her at trial. If the prosecution has other evidence to prosecute the Defendant, outside of the suppressed statement, the prosecution is allowed to continue to trial with whatever other admissible evidence that the prosecution has; otherwise the case is dismissed.
The lawyers at Hilf & Hilf, PLC have received excellent results on many felony, misdemeanor, local ordinance, traffic, and probation violation cases throughout the State of Michigan. Hilf & Hilf, PLC is located at 1775 W. Big Beaver Road in the city of Troy. Call us at (248) 792-2590 to schedule an appointment.