Denied An Attorney During Questioning

[PhoenixFiresky]

What is the name of your state? Nebraska

Today my son, who is a moderately mentally disabled 19 year old, was jumped in a nearby park. Police and EMS were called and he was transported to a hospital where he received stitches. When the teens who jumped him were arrested, however, they told the officers that my son had started the fight. The police questioned my son at the hospital, after having been fully advised that he is autistic. I was not allowed to be present. My son says that he did as I'd taught him and told them that he wanted an attorney present for the questioning, but that the officers simply told him that he couldn't have one, assured him that he wasn't going to be arrested, and continued to question him. They did, however, afterwards issue him a citation to appear in court on charges of Disorderly Conduct.

My son requested an attorney because his disability prevents him being able to exercise reasonable judgement in looking out for his own interests and affects his ability to understand and answer questions in a coherent and complete manner, especially when he is upset. I feel that, as the police had been notified that my son is autistic, both by him and by myself, they took advantage of his disability. Is it legal for the police to refuse someone an attorney during questioning? And, if it's not, can what my son said be used against him? (I have no idea if he said anything damaging or not, I'm just trying to cover all the bases.)

Thanks,
Phoenix

[racer72]

There is no requirement that the police supply an attorney prior to the type of questioning your son received, he was not under arrest and technically could have walked away. Also, because he was cited for a misdeanor, he is not eligible for a public defender. Your best option at this time is to hire an attorney to represent him in court.

[gawm]

Is it legal for the police to refuse someone an attorney during questioning?

When they read your rights, they say "you have the right to an attorney, if you can't afford one, one will be appointed". That doesn't mean they are going to stop and get you an attorney. When they read somebody their rights it is because they are placing them under arrest. Telling them you want an attorney present means you will not answer any questions without speaking to one first. (All that really does is get them to stop because an attorney more than likely would tell you not to make a statement.) Only later on, way after you been arrested, is one appionted to you if you can't afford one. By that time it is usually too late because suspects already made incriminating statements.

[CdwJava]

His attorney can make a motion to suppress any statements he provided. If the court agrees that he invoked his rights and the officers should have discontinued the questioning, then the statement could be suppressed.

However, in cases where you have two sides pointing fingers at each other, the chances are good that either all parties will be charged with some form of disorderly conduct, or no one will be.

- Carl

[cepe10]

Originally Posted by CdwJava

His attorney can make a motion to suppress any statements he provided. If the court agrees that he invoked his rights and the officers should have discontinued the questioning, then the statement could be suppressed.

However, in cases where you have two sides pointing fingers at each other, the chances are good that either all parties will be charged with some form of disorderly conduct, or no one will be.

- Carl

FWIW, I have to agree with Carl's advice here...

[Bretagne]

Quote by Gawm:

When they read your rights, they say "you have the right to an attorney, if you can't afford one, one will be appointed". That doesn't mean they are going to stop and get you an attorney. When they read somebody their rights it is because they are placing them under arrest.

That is an inaccurate and confusing statement. Miranda is triggered when a suspect is (1) in custody, and (2) being interrogated. There is voluminous caselaw explaining each of these facets which trigger Miranda. You don't need to be placed under arrest to trigger Miranda; you must be (1) not free to leave, and (2) subjected to questions likely to elicit an incriminating response.

Hire an attorney for your son, because the determination of whether or not he was "in custody" will affect whether or not his admissions, if any, can be suppressed. (The criminal case can still live on after suppression, becase they won't need his admissions to get in front of a jury.)

An attorney can also help your son get an "alternate" type of disposition. Maybe he won't have to plead to the misdemeanor--maybe there is some type of diversion available.

[The Occultist]

Originally Posted by Bretagne

Quote by Gawm:



That is an inaccurate and confusing statement. Miranda is triggered when a suspect is (1) in custody, and (2) being interrogated. There is voluminous caselaw explaining each of these facets which trigger Miranda. You don't need to be placed under arrest to trigger Miranda; you must be (1) not free to leave, and (2) subjected to questions likely to elicit an incriminating response.

Hire an attorney for your son, because the determination of whether or not he was "in custody" will affect whether or not his admissions, if any, can be suppressed. (The criminal case can still live on after suppression, becase they won't need his admissions to get in front of a jury.)

An attorney can also help your son get an "alternate" type of disposition. Maybe he won't have to plead to the misdemeanor--maybe there is some type of diversion available.

It might have been confusing to you, but that is not inaccurate. Also, you don't know the circumstances, and you don't know that the OP's son was being forced to remain and endure questioning. Simply asking questions does not require Miranda.

[CdwJava]

Originally Posted by Bretagne

you must be (1) not free to leave, and (2) subjected to questions likely to elicit an incriminating response.

It's a little more complicated than that ... you must be subject to force equivalent to a custodial arrest. Being confined to a hospital bed may not be sufficient to require this. In fact, I doubt it would.

In any event, it is fact-specific and up to a judge to decide.

An attorney can also help your son get an "alternate" type of disposition. Maybe he won't have to plead to the misdemeanor--maybe there is some type of diversion available.

Very likely. If he has no prior history, and this is one of those cases that has the DA and the cops rolling their eyes asking why are they wasting their time, then it's very likely that something can be worked out all around.

- Carl

[tranquility]

I'd like to refine Carl's correct response a little more. I remembered it as questions or *comments* designed to ilicit an incriminating response. I remember a case where a mentally challenged person who had a little brother he loved in the back of a police car. The police thought a weapon was in the park and the suspect knew about it. The cops talked to one another about how it would be so sad if a litle kid found a gun and shot himself. So sad. So very, very sad. Tsk. The suspect's statement about where the weapon was was supressed. (Although I think the weapon was allowed in under inevitable discovery and had fingerprints all over it.)

[gawm]

Originally Posted by Bretagne

Quote by Gawm:



That is an inaccurate and confusing statement. Miranda is triggered when a suspect is (1) in custody, and (2) being interrogated. There is voluminous caselaw explaining each of these facets which trigger Miranda. You don't need to be placed under arrest to trigger Miranda; you must be (1) not free to leave, and (2) subjected to questions likely to elicit an incriminating response.

Hire an attorney for your son, because the determination of whether or not he was "in custody" will affect whether or not his admissions, if any, can be suppressed. (The criminal case can still live on after suppression, becase they won't need his admissions to get in front of a jury.)

An attorney can also help your son get an "alternate" type of disposition. Maybe he won't have to plead to the misdemeanor--maybe there is some type of diversion available.

The OP was under the erroneous impression that if his son asked for a lawyer while being questioned they would go get him one. Why was hew under that impression? Because the Miranda gives that impression. I was just trying to explain to him it doesn't work that way. (BTW,I guarantee you, if the cops are reading Miranda, you're under arrest.) I'm not saying his son was under arrest or that he should of been read his Miranda. I"m just saying he was under that impression because "You have the right to an attorney, if you can't afford one, one will be appionted to you" I can see how someone can get that confused.

[garrula lingua]

Since we're delving into 'Miranda', I'll add another wrinkle:

in some cases, it's quite beneficial for law enforcement to violate "Miranda" rights.

If there's sufficient other evidence for a conviction, what DepDistAtty cares if the statements made in violation of Miranda are suppressed ?
Besides, a Prosecutor can still use those statements made in violation of Miranda during rebuttal if Defendant takes the stand.
My advice to cops: if you have sufficient other evidence to convict, it may be (on a case-by-case basis) profitable to go ahead with questioning of defendant in vio of Miranda (as long as the DDA can still get a guilty verdict on other evidence.

For those of you who believe 'Miranda' is a get-out-of-jail-free card, or a sue-the-cop's-butt-off card, please note the above.
All a violation of Miranda does is keep out the defendant's statement/evidence from the Prosecutor's case-in-chief. Big deal - that's little effect on over 85% of cases.

Those statements still nail the defendant to the story he told the cops.

[CdwJava]

Originally Posted by gawm

(BTW,I guarantee you, if the cops are reading Miranda, you're under arrest.)

Well ... not exactly ... we often read Miranda even when someone is not arrest. It's often better to be safe than sorry.

- Carl

[CdwJava]

Originally Posted by garrula lingua

in some cases, it's quite beneficial for law enforcement to violate "Miranda" rights.

Oh GOD no!!!

Recent case law makes us civilly and personally liable for intentionally and knowingly violating Miranda!

From CPOLS:

Officers should not intentionally violate Miranda. The California Supreme Court has unanimously characterized the deliberate violation of Miranda as “unethical misconduct” that “must be strongly disapproved.” (Jablonski (2006) 37 Cal.4th 774, 816; Neal (2003) 31 Cal.4th 63, 81; see also Storm (2002) 28 Cal.4th 1007; Peevy (1998) 17 Cal.4th 1184; Bradford (1997) 14 Cal.4th 1005.) The Neal court, troubled by the suggestion that the deliberate violation of Miranda had received “widespread official encouragement” as a “useful tool,” held that the defendant’s statements were inadmissible not only in the People’s case-in-chief, but for all purposes because they were involuntary.

The Ninth Circuit has also disapproved intentional Miranda violations and has permitted civil suits against police officers resulting in personal liability for such violations. In Chavez v. M artinez, the U.S. Supreme Court left open the possibility of civil suits against officers for Miranda violations (though the Court rejected the particular Fifth Amendment claim presented in that case). (Chavez (2003) 538 U.S. 760, 779, fn. 2 (conc. opn. of Souter, J.) [“The question whether the absence of Miranda warnings may be a basis for a § 1983 action under any circumstance is not before the Court”].)

Also,

A deliberate or intentional violation of Miranda is an extremely risky tactic in California at this time in that the Ninth Circuit has ruled that a deliberate Miranda violation, in combination with almost any other or additional conduct which the court also views as “coercive,” will:

- render any subsequently obtained statement “coerced,” “involuntary,” and therefore inadmissible for any purpose, including impeachment; and

- entitle the suspect to sue for a civil rights violation under the Fifth Amendment for which the offending officer(s) can be found personally liable.

So ... no intentional violation by any thinking and well-trained officer in CA! Unless they don't mind lawsuits!

- Carl

[garrula lingua]

Cops have always had personal liability.
I've never personally seen one held liable, in a civil suit, for a violation of Miranda.

Recent case law makes us civilly and personally liable for intentionally and knowingly violating Miranda!

Hard to prove a violation is intentional - it's usually a result of mistaken belief that another cop did the advisement.

I'm addressing the effect on the defendant.
It really doesn't help the defendant's case if there is a violation of Miranda.
The Prosecutor will not use the info in the case-in-chief, and there is a 99.9% liklihood that the statement can be used in rebuttal.

A violation is NOT a dismissal/termination of the case, nor is it a slam-dunk civil case against the cop.

[CdwJava]

I don't have the memorandum from our legal counsel before me (they represent many agencies in CA as well as PORAC), but there has been suits filed against officers attempting to hold them personally liable for violating Miranda when the officers "reasonably should have known" that continued questioning was in violation of Miranda. We are taught in management and risk management training these days to avoid this like the plague.

I agree that it does not necessarily help the defendant's case for the violation. I just wanted to make it clear that from the law enforcement perspective we do not want to intentionally keep going. This used to be "taught" with a wink and a nod in interview and interrogation courses up until a few years ago. But, ever since the 9th decided we could be held personally liable, and at least one case tried to do just that (as I recall the local agency indemnified the officers), it has been avoided like the plague.

- Carl