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By: Thomas G. Deitman (Guest Blogger)
Happy Monday, TPS readers! Here’s what you need to know: You have the right to have an absolutely fabulous Monday! Anything you say or do can, and will, make that happen. In the event you don’t feel like having an absolutely fantastic Monday – drink from the fountain of caffeinated happiness, surround yourself with positivity, and a great day will be appointed to you!
Today, we’re pleased to feature an insightful article, written by one of our latest and greatest Guest Contributors, Thomas Deitman, regarding the fun topic of Miranda Rights. Here’s what Thomas wants you to know…
The Miranda warning, we all know it by heart. Anybody who has ever watched “Law & Order” or any other police procedural knows it by heart. “You have the right to remain silent (“Just because you’re holding a bag of diamond and standing in front of the jewelry store that has just been burglered, you don’t have to tell us anything”), but anything you do say can and will be held against you (“If you do decide to spill the beans about the diamonds, you are in big trouble!”), you have the right to an attorney (“You can lawyer-up if you want!”), if you can’t afford a lawyer, one will be appointed for you (“If you are too poor to lawyer-up with your own guy, we’ll get you somebody!”). That is about it as far as Miranda goes.
So what’s the confusion? Well, it’s not so much what Miranda says; it’s more about when the cops should say it to you. A lot of people think that you get your Miranda rights when the cops arrest you. That idea comes from those police shows, you know like how everybody thinks you can get a DNA hit in about a half-hour because that is how they do it on “CSI!” What a lot of people don’t understand is that Miranda is not triggered by an arrest; it is triggered by what is known as “custodial interrogation.”
Interesting phrase: ‘custodial interrogation” and somewhat confusing, also. Now we all know what “interrogation” means, that’s when somebody starts asking you some questions. The confusion comes from the word “custodial”. Actually, the confusion comes from three questions that can be asked about the term “custodial:”
1. When is a person really “in custody?”
2. When should a person consider him or herself “in custody?”
3. If a person is arrested but never interrogated, does he/she have to be Mirandized?
Maybe we should look at each question? Let’s set-up a scenario.
Let’s say that there have been several building fires in the same area of the city and at each fire this arson cop has noticed the same guy hanging around watching the fire and the firefighters. So the cop (in street clothes) goes over to the guy and just stands next to him. All of a sudden, the guy starts talking about the fires and the color of the flames and the smoke and in order to get smoke like that you need a certain type of chemical and it looks like these fires were not accidental, yada, yada, yada. Maybe he says something about the fires that only the guy who started them would know. The cop says nothing and when his cell phone rings, the other guy walks away. Afterwards, the cop puts all the guy’s info down on paper and the guy becomes a suspect.
The question here is, can the stuff the guy said be used against him even though no Miranda was given? Some legal scholars would say, “Yes!” because the guy was never in custody (He was free to walk away and he did.) and the cop never asked him any questions. No custody … No questions … No Miranda.
Let’s say in a couple of days, another fire breaks out. The same arson cop is there and he sees the same guy, so he calls for back-up and four uniformed officers show up. The five cops go over to the guy and surround him, so he is in the middle. The arson cops starts to ask questions about the guy’s interest in the fires and why he has been showing up at the fires?
Now to the question – is this guy in custody and is he being interrogated as such? Once again, I think some legal scholars would say, “Yes!” The guy is surrounded by cops, so he is not able to leave and if he does, the cops will just attempt to keep him where he is. The guy is being asked specific questions about the fire by the arson cop. He is not free to leave and he is being interrogated. In custody… Being interrogated… Miranda should attach.
Notice one thing, no arrest has been made to this point but now the guy is placed in cuffs and officially notified that he is under arrest. Would he have to be Mirandized again? Well the cops may just go ahead and do so, to protect their case.
The third question, I tossed-in because I think the cops could get away with no Miranda simply because, while the guy was arrested, he was not questioned at the time. Of course, if, let’s say 10 hours later, the cops decide to interrogate, than Miranda would attach.
So, that’s my take on Miranda! I guess it all comes down to watching what and when something is said and whether a person is with one cop or the entire department.
Thomas G. Deitman works as a Paralegal in Philadelphia, Pennsylvania, and is the Owner of Amador Paralegal Services, LLC. Thomas is a member of the Delaware County Paralegal Association, American Bar Association, ACLU and National Association of Criminal Defense Lawyers. His primary areas of interest are in criminal defense work and death penalty appeals. Thomas also serves as the Secretary and a Board Member for the Amanda Truth Project, which was created to bring educational awareness to the issues surrounding wrongful convictions in cases involving shaken baby syndrome. The group works to educate the community about the potential for pediatric misdiagnosis, helps families, their lawyers and medical experts to find the truth. Mr. Deitman looks forward to joining The Paralegal Society in 2013 as a regular Guest Contributor!
Repeat after me: I will not let stress take me down! I will not let anyone else’s bad mood in the office take me down. I will not allow my own internal thought process regarding a particular task or project to take me down. I will not allow anyone or anything coming into my space to take me down. Now that we have that all straightened out – Remember, you have the right to have an absolutely fantastic day! We’ll see you on Wednesday, TPS Nation!
Until then, keep it happy, and guard those esquires.