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  #21  
Old 13 October 2014, 07:03 AM
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Originally Posted by Esprise Me View Post
One other minor point: the part where the lawyer barges in and says "this interview is over!", much to the suspect's surprise, is not realistic. The attorney doesn't get to call himself in; the accused has to invoke his right to counsel.
I thought in those cases the family had called in the lawyer, rather then random passing lawyer just barging in.

But I guess the accused still has to agree to the lawyer being their lawyer.
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  #22  
Old 13 October 2014, 11:29 AM
Singing in the Drizzle Singing in the Drizzle is offline
 
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I'm sure that a whole half hour TV could be filled with what happens between the lawyer being asked to come in and represent someone and that person leaving the police station with them. The problem is that you still need to tell the rest of the story in that time. So the only thing important is the suspect was brought in for questioning and lawyered up and left without answer the questions.

As for you personally be questioned by police the best thing you can do is shut up and demand a lawyer. Remember no matter what they tell you the only reason you are being question is to find the person/s to blame for some crime and every thing you say will be used against you (even if not in a court of law) and never for you.
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  #23  
Old 13 October 2014, 01:15 PM
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Originally Posted by Singing in the Drizzle View Post
...every thing you say will be used against you (even if not in a court of law) and never for you.
That really is not true. There are a few rogue officers/detectives who will pin a case on whomever they can, but that is atypical. If you are a witness to a criminal incident, you need not assume the interrogating officer's intent is to pin the incident on you. However, that being so does not mean that there is not often a good reason for having a lawyer with you for the questioning. Your situation as a witness may involve admission of some crime or another you had not really thought through (trespassing, etc.), or there could be some real doubt as to who the perpetrator was, in which case everyone on the scene has to be considered a suspect until ruled out. But even in the latter cases, if you say you came upon the scene as events unfolded, but that you had just completed a transaction at a store, the police will check with the store for the timing (or otherwise check details) to rule you out as a suspect.
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  #24  
Old 13 October 2014, 02:41 PM
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A few things to keep in mind.

Your rights are always with you. You do not have to be "Mirandized" before your rights kick in.

One must actually invoke the right to remain silent. Just not speaking is not enough. While it seems it accomplishes the same thing it can be interpreted as a failure to answer a specific question which can be interpreted as a sign of guilt. Invoke your right and then stick to it.

Just because you invoke your right to remain silent does not mean the police need to remain silent. They can continue questioning you even if you have told them you will not answer. This is a strategy to get you to defend yourself and make a mistake.

It is important to ask for a lawyer. This should actually put an end to the questioning.

If your family or a friend hears you were taken to the police station and calls a lawyer on your behalf, the police do not have to tell you a lawyer has arrived. You must ask for the lawyer yourself.
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  #25  
Old 14 October 2014, 04:00 AM
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Originally Posted by Photo Bob View Post
One must actually invoke the right to remain silent. Just not speaking is not enough. While it seems it accomplishes the same thing it can be interpreted as a failure to answer a specific question which can be interpreted as a sign of guilt. Invoke your right and then stick to it.
While it's good advice to explicitly invoke your right to remain silent rather than simply not talking, your statement is not quite accurate. Anything can be "interpreted" as a sign of guilt, if by "interpreted" you mean the police may think you're guilty, but your silence can never be used against you in a court of law, even if you failed to invoke the right to remain silent. What invoking your right to silence does is it stops the questioning, which may be more difficult to withstand than you might anticipate until you're in that situation.

Quote:
Just because you invoke your right to remain silent does not mean the police need to remain silent. They can continue questioning you even if you have told them you will not answer. This is a strategy to get you to defend yourself and make a mistake.
Again, as I stated above, this is not true. Once you invoke your right to silence, they have to stop questioning you, at least for the time being.
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  #26  
Old 14 October 2014, 06:03 AM
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Unfortunately, your silence can be used against you in court in some circumstances. The Supreme Court ruled last year that a person being interviewed non-custodially who responded to a question with silence, but who didn't expressly invoke his 5th Amendment right, could have his silence used against him at trial. The case is Salinas v. Texas.
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  #27  
Old 14 October 2014, 01:57 PM
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What Erwins said about invoking your right to silence.

When and How to Invoke Your Right to Silence

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On Monday, June 17, 2013, in a closely-contested decision, the United States Supreme Court held that prosecutors can in fact point to an out-of-custody suspect’s silence in response to police questioning as evidence of guilt. (Salinas v. Texas, 133 S. Ct. 2174 (2013).) The only way to prevent the government from introducing evidence at trial of the suspect’s silence is to explicitly invoke the right to say nothing. In other words, without being warned by the police or advised by a lawyer, and without even the benefit of the familiar Miranda warnings (which might trigger a “I want to invoke my right to be silent!”), the interviewee must apparently say words to the effect of, “I’m not saying anything because I invoke my right to silence.”
Bolding is mine.

As for questioning after invoking the right to silence, it does happen. Can't find the article I read discussing this issue. I would amend that statement to "just because you invoke your right to remain silent does not mean the police have to remain silent."

My main point was the requirement to invoke the right to remain silent. Until them all questioning will continue (unless of course you have invoke your right to an attorney).
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  #28  
Old 14 October 2014, 03:12 PM
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Interesting stuff. I was watching one of those cop shows (I think it was The First 48, but I could very well be mistaken) and a suspect invoked his right to an attorney. This was after a fair amount of questioning, and seemed like a move to make the questioning stop.

The questioning officers got up and immediately left the interview room but because they were not in a purpose built interview room (there was a computer and other things in there) they got an uninvolved detective to stand in the room to monitor the suspect. While the main detectives were out of the room, the suspect engaged in conversation with the new detective and all but admits to many of the details of the crime. Things like:

- things just got out of hand

- I screwed up bad

- if only Mikey had not done that

- I should have left town right away

As this was all caught on video, and in front of a detective, a good chunk of the remaining show was about the viability of these statements given he had invoked his right to an attorney.

Now, I'm sure the answer is pretty straight forward, but they played it out quite well for dramatic effect in the episode. In the end, he was charged and the end credit card stated that he plead guilty to a lesser offence.
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  #29  
Old 14 October 2014, 05:41 PM
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I've always been a little confused when I've seen the English equivalent of Miranda in British cop shows: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

That sounds to me like you have to provide any exculpatory information to the police when questioned, or you may be prevented/restricted from presenting it as part of your defense. Is that an accurate interpretation?
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  #30  
Old 14 October 2014, 05:52 PM
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I'm fairly certain that in England, silence can be used to impeach a defendant's testimony in court. So if you are going to rely on an exculpatory explanation, or an alibi, or the like later, the fact that you did not offer it to police when questioned can be used to suggest that the testimony is fabricated.

UEL: When a suspect invokes the right to an attorney, all questioning must stop. If the suspect volunteers information to an officer without any questions being asked, that is not a violation of the person's rights under US law.
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  #31  
Old 14 October 2014, 06:01 PM
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Quote:
Originally Posted by erwins View Post
UEL: When a suspect invokes the right to an attorney, all questioning must stop. If the suspect volunteers information to an officer without any questions being asked, that is not a violation of the person's rights under US law.
That's exactly what I suspected. I figured they were playing it for dramatic purposes (and it wasn't event the police that were doing it, but the voiceover person).
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  #32  
Old 14 October 2014, 06:14 PM
Elkhound Elkhound is offline
 
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Originally Posted by Latiam View Post

I have always wondered how someone in that situation goes about getting a lawyer. Do they pick one out of the phone book?
Usually one will have a lawyer one has a history civil matters--real estate transactions, domestic, wills, etc. While s/he probably won't also be a criminal specialist, s/he is still your attorney-of-record and can provide basic legal protection. If one gets actually charged, s/he will recommend that you get a criminal specialist, and probably can suggest someone.

Working as a paralegal in civil practices, I've often gotten a call from someone we represented (or the person's spouse/sibling/friend/child) saying that the police have taken so-and-do downtown and what should they do? The above is pretty much what we did.
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  #33  
Old 14 October 2014, 06:15 PM
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I have heard of circumstances where police have stopped questioning, but continued to talk to or in range of the suspect, eventually eliciting incriminating statements. The one I most recall involved a disappeared child, and as the police were taking the suspect back to the station after he had invoked his right to an attorney, the officers talked 'between themselves' about what a shame it is that the family was facing the holidays without the closure of knowing what happened to their little girl; the suspect broke down and took them to the dump site. This was held to not be interrogation violating the rights of the suspect.
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  #34  
Old 14 October 2014, 08:27 PM
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Quote:
Originally Posted by erwins View Post
I'm fairly certain that in England, silence can be used to impeach a defendant's testimony in court. So if you are going to rely on an exculpatory explanation, or an alibi, or the like later, the fact that you did not offer it to police when questioned can be used to suggest that the testimony is fabricated.
That seems problematic to me because a suspect may not realize at the time he is interviewed by police that a particular explanation is exculpatory.
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  #35  
Old 17 October 2014, 01:36 AM
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Quote:
Originally Posted by A Turtle Named Mack View Post
I have heard of circumstances where police have stopped questioning, but continued to talk to or in range of the suspect, eventually eliciting incriminating statements. The one I most recall involved a disappeared child, and as the police were taking the suspect back to the station after he had invoked his right to an attorney, the officers talked 'between themselves' about what a shame it is that the family was facing the holidays without the closure of knowing what happened to their little girl; the suspect broke down and took them to the dump site. This was held to not be interrogation violating the rights of the suspect.
The case you're thinking of is Williams v. Brewer, and its holding is that, in roughly the circumstances you describe, Williams did not validly waive his right to counsel. The officer's statements were designed to elicit incriminating information.

There's another case you might be thinking of, Rhode Island v. Innis, where a suspect had apparently ditched a shotgun before being arrested. One officer talked to another in the suspect's presence, about how he hoped a child would not find the shotgun. The suspect then revealed where the shotgun was. That was held not to be interrogation.
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  #36  
Old 17 October 2014, 01:39 AM
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Originally Posted by snopes View Post
That seems problematic to me because a suspect may not realize at the time he is interviewed by police that a particular explanation is exculpatory.
I suppose one can argue that at trial, but I agree that it is problematic.
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