Detroit Criminal Lawyer Examines The Right to Remain Silent and the role of the “Miranda Warning” in the 21st Century

As a criminal defense attorney in Detroit, Michigan, one of the first questions asked of me by many of my clients following an arrest is “I was arrested and the police never read me my rights, shouldn’t my case be dismissed”. For many clients, a belief exists that this failure by the police to read them their Miranda Rights or provide a “Miranda Warning” constitutes an automatic dismissal of their ensuing criminal charges.

This often leads me with the responsibility to explain the purpose of the Miranda Warning, and how the court will ultimately view the police officer’s failure to read my client their Miranda Rights. Often surprised, and sometimes even outraged by my response that the failure of the police to read my client their Miranda Rights will not alone result in the dismissal of their criminal charges, I thought it was worthwhile to review the historical background of the “Miranda Warning” and its current role in the 21st century of social media to help my clients and the general public understand their rights under the Miranda law.

Historical Landscape of the Miranda Warning

The “Miranda Warning“, more commonly referred to as “Miranda Rights”, acts a constitutional safeguard by police to warn persons in police custody, or those subject to custodial interrogation by law enforcement of their consitutional right to remain silent and not make any statements (written or oral) to law enforcement while in custody. The Miranda Warning was first established in the historical Supreme Court case of Miranda v. Arizona in 1966. Ironically, the Miranda Warning is not only provided to protect the rights of the arrestee, but also to preserve the admissibility of any statements provided by the arrestee to law enforcement in court.

The ultimate goal is to preserve or safeguard a person’s Fifth Amendment right against self-incrimination by offering a statement or confession to the police without first knowing their right to refuse to do so. Thus, after being read their Miranda Rights, if a person makes a confession or statement to the police, that confession or statement would not be a violation of their right against self-incrimination and will likely be upheld in court during the criminal proceedings.

Typical Miranda Rights will include statements similar to:

• You have the right to remain silent when questioned.
• Anything you say or do may be used against you in a court of law.
• You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
• If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
• If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
• Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

The above Miranda Rights however are not always given or provided by law enforcement, which leads to much of the confusion of when Miranda Rights should be read and provided by the police, and the consequences for police when these rights are not given.

When should Miranda Warnings be invoked by the Police?

At what point should police provide the Miranda Warnings or read a person their Miranda Rights is of critical importance to understand. Legally, the police or law enforcement must read a person their Miranda Rights at the point a person is arrested by the police (i.e. handcuffed); detained by the police (i.e. held for questioning or where a person believes that he or she is not free to leave); or where a person is subject to police custodial interrogation in which it is expected that a person is to speak or provide a statement about the crime(s) in question.

Thus, when a client tells me that the police failed to read them their Miranda Rights, one of the first questions I ask my client is exactly what point did you feel that you were under arrest? This is where the clock begins to tick in terms of whether or not a person’s Fifth Amendment right against self-incrimination has been violated or not. Any statements or confessions provided to law enforcement prior to being under arrest is fair game and in most cases admissible as a confession in court against the defendant.

Examples of when the police do not need to read you your Miranda Rights include a routine traffic stop where the police officer asks you “have you been drinking” or “have you been smoking marijuana” and you respond “YES”. Your statement of “Yes”, will be considered a voluntarily statement and not one of self-incrimination because at that time you were not under arrest or technically in police custody.

However, if and when the officer decides to arrest you, at that point the Miranda Warnings should be given to protect you from providing any incriminating statements to law enforcement without prior knowledge of your Miranda Rights. If these Miranda Warnings were not given, and you still provided the police with an incriminating statement or confession, then a criminal defense attorney can argue that the confession should be inadmissible and thrown out in violation of the Fifth Amendment.

Miranda Rights in the 21st Century

The issue of whether or not a person adequately invoked their right to remain silent remains one of the most debated constitutional challenges in criminal law today.

Court: Convicted Killer’s Rights Not Violated By Fort Smith Police

Pre-Miranda Questioning Inadmissible in Terror Case 

More importantly, in an era where more and more crimes are being investigated by law enforcement via social media, a question remains as to whether or not a person’s admission of a crime on a Facebook post or during a tweet will raise the constitutional challenge of the Fifth Amendment where no Miranda Warnings could have possibly been given prior to an arrest. Most recently was was the case of Matthew Cordle who posted a youtube video admitting that he killed a man while driving drunk prior to his arrest, only later to enter a not guilty plea in court in his attorney’s attempt to present the youtube video as inadmissible evidence.

As the law is ever evolving concerning the Fifth Amendment and a persons right to invoke their right to remain silent, as a Detroit Criminal Defense Attorney, my advice is to ALWAYS REMAIN SILENT when it comes to speaking to the police. It is far better, and much easier to not to make a statement at all to the police instead of challenging the validity of the statement in court only to have the Judge rule the statement or confession as being admissible. Although I am certain that the future will present many situations where the issue of Miranda Rights will be at the forefront of my case, my hope is that this article has helped shed some light on this confusing yet all important topic.

The Conflict of an African-Amercian Criminal Defense Lawyer

At first glance when the local news first reported the shooting death of 19 year old Renisha McBride, an African-Amercian female, who was shot and killed by a white homeowner, Theodore Wafer, 54, of Dearborn Heights, Michigan, an immediate feeling of frustration and anger was experienced by the African-American community not only in Detroit, but nationwide.

Although the initial news reports did not provide many details of the incident other than Renisha McBride being involved in an auto-accident and possibly looking for further help and assistance, the racial overtones and circumstances of the killing undoubtedly channeled those of the recent shooting death of Trayvon Martin in Florida, followed by the acquittal of his shooter George Zimmerman. The obvious similarities include 1) Death by gun; 2) a youth or teen who died as a result of a shooting at the hands of an adult; and 3) unclear facts and few witnesses to the incident. The racial overtones, frustration and outrage in the Trayvon Martin incident however are mirrored in the case of Renisha McBride by a similar pattern of 1) Delayed police investigations and reporting; 2) Delayed Arrest and prosecution of shooting suspect; 3) Unarmed Black teen located in a predominately white community; and 4) National media attention zeroing in on the issues of race, self defense and gun laws.

Detroit man charged with murder in shooting death of Renisha McBride – The Guardian

As an African-American criminal defense attorney in Detroit, both the shooting deaths of Trayvon Martin and Renisha McBride raise many conflicting and often times challenging legal and racial issues within me. In the case of Trayvon Martin, I had to question why a teenage child armed with nothing but a iced-tea and pack of skittles had to meet such an untimely and unfortunate violent death. A death that many believed could have been avoided had George Zimmerman simply followed the directions of the 911 operator and stayed put without taking it upon himself to actively follow Trayvon Martin.

The criminal defense attorney in me however strongly believes in the use of self-defense, and if I were representing George Zimmerman at trial, I could definitely rationalize before a jury the use of deadly force if Zimmeran believed his life was in immediate danger at the hands of Trayvon Martin. Admittingly, once the jury verdict was read and George Zimmerman was found not guilty, I again empathized with the pain, grief, and feeling of forgone justice that Trayvon Martin’s parents and the African-American community would soon endure. However, as a criminal defense lawyer I could not help be feel a sense of relief knowing that legally the prosecution absolutely failed to meet its burden of proof based upon a charge of predmediated murder, and that the jury had no choice but to return such a verdict based upon the weak and often inconsistent evidence the prosecution provided.

Unfortunately, a similar conflict within me will once again arise as more details of the Renisha McBride killing surfaces and the criminal matter proceeds to trial. As a criminal defense attorney, I understand the importance of advocating for, and providing a zealous defense of your case, regardless of the race, gender, or orientation of the clients we represent. I also understand the prosecutor’s duty to seek justice for the victims of crimes and the clients they represent. But in cases such as Trayvon Martin and Renisha McBride, the difficulties of separating my experiences as an African-American and that of an criminal defense lawyer will always exist.

Racial overtones will undoubtedly intertwine themselves with many of the facts and details in this case, despite Renisha McBride’s parents request to exclude race as being a predominant factor. Renisha McBride: Parents do not want race to be considered as factor in case. An array of legal issues such as self defense, reasonable force, permissive use of deadly force, homeowner’s rights, and gun laws will pervade both the courtroom of law and the courtroom of public opinion for weeks to come. However the conflicting issue for many, including myself will come down to the question of whether or not Theodore Wafer’s shooting of Renisha McBride was motivated not by a honest belief of imminent danger and intrusion, but rather by the color of her skin. I know that racial conflicts and challenges will always exist in my criminal practice as tragic stories and incidents of gun violence are one too many in urban cities such as Detroit. In the meantime however, I must continue to learn from the experiences of both the Trayvon Martin and Renisha McBride incidents and only hope that as a nation we learn a valuable lesson on race and law as well.

Attention Michigan Legislators: Move or Get Off The Pot!!!!

As an advocate for helping people with criminal records seek the legal criminal expungement process to help clear their criminal past, I have been asked by several people over the past few month’s the same question: Where are we at with the passing of House Bill 4186?

For those who may not know, currently in Michigan, a person who has a misdemeanor or felony conviction on their record, along with multiple additional misdemeanor offenses is ineligible for an expungement if the previous misdemeanor offenses occurred after their 21st birthday. For example, a person who was convicted of a misdemeanor offense at age 21, then subsequently convicted of a felony at age 30 (or vice versa) is ineligible for a criminal expungement.

House Bill 4186 eliminates this by allowing a person with a felony on their record to still seek an expungement so long as they 1) have no more than two (2) misdemeanor convictions, and 2) qualify with all of the requirements of HR 4186, regardless of their age at the time the misdemeanor offenses occured. The reasoning behind the introduction of HR 4186 was to help stimulate Michigan’s economy by potentially allowing a larger sector of individuals who once would not have qualified for most jobs due to their criminal record to once again join and strengthen the workforce. To read more about the pros and cons of House Bill 4186 click below:

House Bill Provides New Hope For A Second Chance For a …

My issue with the Michigan Legislature rests with the complete inaction on their part to move this bill forward to a vote. House Bill 4186 was originally introduced on February 5, 2013 by Rep. Stacy Oakes. On May 7, 2013 a summary of the bill was drafted, followed by an analysis completed on May 28, 2013. Since May 28th virtually no actions have been taken on HR 4186. The question remains as to why this bill has lost its steam in the legislature with no legislative action taken in over six months?

As someone who studied Political Science and the legislative process as an undergraduate student in college, I understand that many legislative proposals will often die in the house without ever seeing the possibility of reaching a vote. I also know that the legislative process is one that does not happen overnight and tends to move at its own pace. However, when faced with the public and political outcry HR 4186 initially received by persons who believed that “criminals” should not get second,third, and fourth chances to redeem themselves, makes me wonder if this proposed bill has succumbed to outside pressure and political influences.

If so, then why spark the interests of many persons who at last may finally see a glimpse of hope in their future with the potential of one day finally finding themselves eligible to pass an employer’s background check. Or even the many employers who throughout the years who have welcomed rehabilitated offenders to work in their stores and places of business, but now have to wait for legislators to decide “if” they want to act and move forward with this bill. At this point, I demand that the Michigan Legislature either move forward with a resolution of HR 4186 or get off the pot and let other ideas surface to hopefully seek the legislative outcome that HR 4186 intended to have.

I thank Rep. Stacey Oakes for leading the charge in the the introduction of this bill, but now it maybe time for “we the people” to voice our own opinions to seek the change we desire to see. What do you think?