Re: [Leica] Is this believable?

[Bryan Caldwell <bcaldwell51@earthlink.net>]

On 12/7/02 11:02 AM, "Frank Farmer" <frankandaubrey@mindspring.com> wrote:

> Miranda rights are required for "custodial interrogation."  That term is often
> debated, but basically , if you can't leave, then you must be mirandized.
> That includes the officer holding your driver's license at a traffic stop if I
> remember my crimial law correctly.  I don't practice that very much.
> 
> Frank
> 
> On Fri, 06 Dec 2002 10:40:21 -0800 Bryan Caldwell <bcaldwell51@earthlink.net>
> wrote:
> 

Frank,

It is never the case that you MUST be Mirandized - meaning that if you are
not, you must automatically be released or that the charges against you must
automatically be dismissed. Failure to give Miranda warnings only means that
any statements you make that are the result of in-custody questioning cannot
be used against you in the prosecution's case-in-chief. If you are detained
or arrested and the police don't intend to question you, they don't need to
Mirandize you. Un-Mirandized responses to police questioning can be used to
rebut contradictory testimony that you give at a later date. For this
reason, not giving Miranda warnings can often be a tactical decision on the
part of law enforcement. If you are questioned without having been given the
Miranda warnings, your statements may prevent you from effectively
testifying on your own behalf at a later trial or other proceeding. I think
that television and movies have given many people mistaken impressions about
Miranda. I often have clients who are charged with criminal offenses and
think that all charges against them have to be dropped because they were
never Mirandized. This is not the case. It is true that, in some cases, the
prosecution's case cannot be proven without the use of an un-Mirandized
statement. In those cases, if the defense attorney makes the appropriate
objection and prevails on the issue, the case will likely be dismissed. But,
if the prosecution can prove their case without using an un-Mirandized
statement, the case will go forward. Miranda has no effect on the legality
of an arrest - it deals with the admissibility of statements made by an
in-custody suspect that are the result of police questioning.

Bryan

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