Many people are very familiar with the Miranda right to counsel. Watch any popular television show and chances are that you will see an accused invoke his or her right to counsel, under the Fifth Amendment to the United States Constitution.
The issue of Miranda warnings and 5th Amendment Right to Counsel can get complicated. It is important to seek the guidance of an experienced criminal defense attorney right away if you have become the target of a criminal investigation.
First and foremost, you should understand that the key to Miranda rights is silence. If you fail to exercise the right to remain silent, then Miranda will not protect you.
All Questioning Must Cease Once an Attorney is Requested
If you are in police custody and you are being questioned, you can at any time prior or during the interrogation ask for counsel. Once you ask, the questioning must cease until you are able to speak with an attorney. Remember, do not be ambiguous about your request for counsel, stating merely that you think you should have counsel may not be enough to prompt the officers to stop the interrogation.
You Can Waive Your Right To Counsel If You Do Not Remain Silent
You can request an attorney at any time. Questioning must cease unless you then decide to keep talking on your own.
It is understandable that you may be afraid and not thinking clearly when you are being interrogated. It may also take a considerable amount of time for you to have a hired attorney speak with you or have a state attorney be appointed for you.
In that time frame, it is quite possible that the anxiety and fear may cause you to ask questions yourself. If you ask questions yourself, even as simple as “what is going to happen to me now?” You may conceivably waive your right to counsel.
Miranda Applies Only to Custodial Interrogation
Miranda applies to custodial interrogations only. Essentially, custodial interrogation means that you are not free to leave.
Your Fifth Amendment right to counsel only applies to a custodial interrogation. This gives rise to the obvious question of what is a custodial interrogation? The definition can be somewhat confusing but the basics are pretty clear.
This means that you were already arrested either at the scene or by warrant and the investigating officers are questioning you about the alleged crime. You have a right to have your attorney present during the interrogation, not just to speak with the attorney. So make sure that you do not answer any questions until you consult with your attorney, and the attorney is present.
A Stop Is Not Necessarily a Custodial Interrogation
A simple stop is not a custodial interrogation. However, it may quickly turn into one.
In many instances, you may be confused as to what is a custodial interrogation. For instance, if you are stopped for a traffic infraction, or if you are approached by a police officer on the street, and the officer asks for you to identify yourself, that is not a custodial interrogation.
However, the stop can turn into a custodial investigation if you are not free to leave. Likewise, it may turn into a custodial interrogation if you do not believe you are free to leave. As you might imagine, this issue can be hotly disputed on both sides.
Request an Attorney If the Answers May Incriminate You (or Even if they Won’t)
You should request an attorney immediately if you are being questioned about a crime and you may be the target of the investigation. You should request an attorney if the answers may incriminate you.
Perhaps just as importantly, you should request an attorney if you are not sure. The friendly police officer is there to investigate a crime and prosecute. He is not your friend. Rest assured, the friendly conversation you are having may and will be used against you if it can.
So stop talking and request an attorney if there is any possibility, however remote, that you may be the target of the investigation.
Seek Experienced Criminal Defense Counsel
Once you have requested an attorney, it is important to seek the advice of an attorney. Simply ignoring the problem is generally not a good idea.
Specifically, there are often opportunities for heading off the investigation against you. In their words, citizens are wrongfully charged far too frequently. It is far better to avoid the charges to begin with than to try to deal with them after the fact.
The attorneys at Collins & Collins, P.C., have extensive experience in representing clients in criminal matters. This includes all phases from the investigation to grand jury to criminal trial. We can help.