Some Legal Questions I'm Not Clear On

[HiFi]

What is the name of your state (only U.S. law)? CA

Would appreciate anyone providing the answers to these legal questions on matters I never thought of before and am just interested.

1. If a person questioned by the police demands a lawyer and the ploice end questioning but the person says he changed is mind and he doesn't want a lawyer for the time being, are the police allowed to still question him and if so are statements made allowed in court? If they are allowed to question him must they Miranda him again?

2. If a girlfriend says to a boyfriend "You ought to kill your father" and he does it, is she an accomplice? If she said it a week earlier and didn't say it again, is she an accomplice? IF she said she didn't mean it and was just blowing off steam, is that a defense? If she said it a year ago, doesn't say it again and he murders his father, is she an accomplice?

3. If a brother and sister make plans to kill their father and the sister tells him she changed her mind, is she still responsible if he kills him? If so, would the best thing she could do before any crime is committed is go to the police and say she planned to kill her father ,changed her mind and told her brother that she won't do it? Will that still get her charged with a crime if the murder wasn't carried out?

Thanks for any answers.

 

[FlyingRon]

Until the prosecution begins the police are free to keep asking questions. It is up to the suspect to either remain silent, wait for counsel, or to cooperate. Miranda need only be given once, though many police will reconfirm it at the beginning of a new session of questioning.

That statement by itself is a little weak. Depending on what ever transpired there may or may not be a conspiracy here. If murder is involved, you're way beyond the realm of self-help here. You need a lawyer (and to remain silent without one).

With regard to the last one, certainly. Conspiracy exists even if the plan is never carried out. If it is, the fact that she has second thoughts doesn't eliminate her culpability.

 

[tranquility]

Each of the questions are good ones. But, they get to the basic nature of the rights and rules involved would require a lot of writing to answer and, at least for me, would need a little time in review to complete the chain. Sorry, this forum is not the place for those questions. (In fact, they are so good, you should be taking a class on criminal law or criminal procedure or something to answer them.)

However, FlyingRon's answers are wrong. Each one. To explain why would take some review and maybe some writing time, but, if you had to choose in a T/F or multiple choice environment, take the answer most opposite of his.

 

[CdwJava]

As previously mentioned, your questions might involve some complex responses and a simple response to a question lacking in specifics is difficult to answer completely. However, there are some general guidelines that apply in some circumstances ...

1. If a person questioned by the police demands a lawyer and the ploice end questioning but the person says he changed is mind and he doesn't want a lawyer for the time being, are the police allowed to still question him and if so are statements made allowed in court? If they are allowed to question him must they Miranda him again?

It is generally permissible to return to interview a suspect if it is the suspect that initiates further communication. And, yes, Miranda will either once more be required, or at least a reminder to the suspect of his previously explained rights.

2. If a girlfriend says to a boyfriend "You ought to kill your father" and he does it, is she an accomplice? If she said it a week earlier and didn't say it again, is she an accomplice? IF she said she didn't mean it and was just blowing off steam, is that a defense? If she said it a year ago, doesn't say it again and he murders his father, is she an accomplice?

Quite complex ... in general, I'd have to say, "no".

An "accomplice" is defined as a witness at trial who is liable for the same offenses for which the defendant is on trial. She is, in effect, would be a principal if she aided and abetted in the commission of the offense and shared the intent of the defendant. However, since it appears that she would have done nothing to aid in the commission of the offense, it is doubtful she would be an accomplice under CA law given this scenario on face value.

Now, she MIGHT be considered a conspirator to the crime, but that would be tricky for the prosecution given the simple fact set provided. If she offered the suggestion and the killer outlined his plans or communicated his intentions and she made no effort to dissuade him or prevent the crime, an argument might be made that she was a conspirator.

3. If a brother and sister make plans to kill their father and the sister tells him she changed her mind, is she still responsible if he kills him? If so, would the best thing she could do before any crime is committed is go to the police and say she planned to kill her father ,changed her mind and told her brother that she won't do it? Will that still get her charged with a crime if the murder wasn't carried out?

This is much along the lines of the question above.

If these are questions for a class, the answers are available (including supporting case law) from a variety of sources - online and in the library. You have to understand that specific crimes are made based upon specific and articulable facts, not broad outlines. Any good answer to these questions would require a number of qualifiers and conditions, and could be rendered moot if additional "facts" are provided.

- Carl

 

[FlyingRon]

I disagree with the comments of CDW and the Tranqs unwarrentedly rude ones. The necessity of repeating Miranda has been held unnecessary by decisions in the Eighth (US. v. Paulton), Nineth (Guan v. Dela Pena and Baruch v. Smith), and Eleventh (Jarrell v. Balkcom).

Presuming the OP is talking about something happening in CA or otherwise in the ninth circuit, they aren't going to get very far apparently arguing that the Miranda rights were not repeated in each questioning.

 

[CdwJava]

I disagree with the comments of CDW and the Tranqs unwarrentedly rude ones. The necessity of repeating Miranda has been held unnecessary by decisions in the Eighth (US. v. Paulton), Nineth (Guan v. Dela Pena and Baruch v. Smith), and Eleventh (Jarrell v. Balkcom).

Presuming the OP is talking about something happening in CA or otherwise in the ninth circuit, they aren't going to get very far apparently arguing that the Miranda rights were not repeated in each questioning.

Ron, that is not the case in CA where the OP hails from.

From CPOLS:

A suspect will be viewed as having "initiated" further questioning, and thus come within this exception to the normal Miranda rule, if: (1) he indicates he has changed his mind (i.e., is willing to repudiate his previous invocation of rights) and wants to open up a more generalized discussion of the crime; (2) his decision to do so was made freely and voluntarily and was not the result of encouragement, coercion, or further interrogation by the officers; and (3) you re-advise him and obtain a valid Miranda waiver before the questioning takes place.

(Edwards (1981) 451 U.S. 477, 486, fn 9; Bradshaw (1983) 462 U.S. 1039, 1046; Sapp (2003) 31 Cal.4th 240; Neal (2003) 31 Cal.4th 63, 68; Waidla (2000) 22 Cal.4th 690, 728; Bradford (1997) 14 Cal.4th 1005, 1036; Bradford (1997) 15 Cal.4th 1229, 1311.)​

Remember, California has its own appellate courts that have some say on the matter as well.

- Carl

 

[tranquility]

Three things. First, I don't think me utterly disagreeing with FlyingRon is rude. Readers may form their own opinions.

Second, what Carl said.

Third, the 9th circut cases FlyingRon mentioned are not relevant on any of the issues of the first question. The second is not citeable and refers to the first. The first (Actual cite for those who want to read: 72 F.3d 767) had the person being giving his Miranda before he was in custody, he waives and then the police re-ask the questions 15 hours later when he was in custody.

Here, we have a person asking for a lawyer (different set of rules) who did not explicitly waive. The passage of time is not the issue as it was in Guam v. De La Pena. The decision is about as short as I've ever seen an appellate decision (beyond a simple denial) and shouldn't take anyone more than a minute to read for themselves.