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kaitco
07-12-2017, 01:52 AM
Here's the scenario I'm currently writing:

Police detectives are investigating a felony that occurred in an apartment building
Dan lives in said building and the police request that he come down to their precinct to answer some questions with regard to the crime
Dan retains counsel and both Dan and his attorney arrive to speak to the police
Dan is not placed under arrest and is free to leave
The police have been made aware that Dan has retained counsel
The police continue their investigation and a large amount of evidence points to Dan as the perpetrator of the crime
The police arrive at Dan's apartment and request that he come to their precinct to answer more questions
After keeping Dan in an interrogation room alone for an hour, detectives return to Dan, but Dan openly confesses to the crime
Dan is arrested and processed
Dan's lawyer later files a motion to have the confession thrown out because the detectives were aware that Dan was represented by counsel and that the lawyer should have been contacted prior to the detectives questioning Dan


How far off am I regarding the law on that final bullet? Could a judge suppress a confession based on the argument that Dan should not have been questioned without his attorney present?

The ultimate goal here is that Dan and the lawyer are "in" on this together. Dan will plan to be arrested, but he and the lawyer have the case dismissed on this kind of technicality.

If a judge wouldn't suppress a confession based on the above, what types of mistakes would the police need to make for a judge to rule on the admissibility of the confession, outside of purposefully coercing the confession?

chompers
07-12-2017, 03:16 AM
If Dan wasn't read his Miranda rights beforehand, it could get thrown out.

blacbird
07-12-2017, 03:54 AM
Could a judge suppress a confession based on the argument that Dan should not have been questioned without his attorney present?

Probably not on that basis alone, as long as the Miranda warnings were provided before the interview. It is a requirement that the person arrested be informed of the right to an attorney. But, once warned, he has to explicitly exercise that right by telling the interrogators so. It is by no means unusual that arrested parties agree to talk to police without having an attorney present. If they do exercise the demand for an attorney, they quite likely will get locked up until such an event can be arranged, which may take days. A lot of defendants do the stupid thing of believing they can talk their way out of the problem just by being cooperative with the police. Any decent defense attorney will insist that no client do this. It's just plain a bad idea. But it happens, all the time.

caw

Helix
07-12-2017, 04:09 AM
Even if there is some way to throw out the confession, the cops still have a large amount of evidence.

cornflake
07-12-2017, 04:16 AM
Here's the scenario I'm currently writing:

Police detectives are investigating a felony that occurred in an apartment building
Dan lives in said building and the police request that he come down to their precinct to answer some questions with regard to the crime
Dan retains counsel and both Dan and his attorney arrive to speak to the police
Dan is not placed under arrest and is free to leave
The police have been made aware that Dan has retained counsel
The police continue their investigation and a large amount of evidence points to Dan as the perpetrator of the crime
The police arrive at Dan's apartment and request that he come to their precinct to answer more questions
After keeping Dan in an interrogation room alone for an hour, detectives return to Dan, but Dan openly confesses to the crime
Dan is arrested and processed
Dan's lawyer later files a motion to have the confession thrown out because the detectives were aware that Dan was represented by counsel and that the lawyer should have been contacted prior to the detectives questioning Dan


How far off am I regarding the law on that final bullet? Could a judge suppress a confession based on the argument that Dan should not have been questioned without his attorney present?

No, why should he not have? Because he''s got a lawyer doesn't mean the lawyer has to be present. That's Dan's problem. No one made him go to the precinct, no one made him confess. I'm not saying his lawyer wouldn't try to say the confession was made under duress or was forced, but there's no argument that like, the cops should call his lawyer; that's not their job.

The ultimate goal here is that Dan and the lawyer are "in" on this together. Dan will plan to be arrested, but he and the lawyer have the case dismissed on this kind of technicality.

That's a dumbass lawyer. No actual lawyer is playing games like that. You have NO guarantee what'll happen. By the way, Dan is a dumbass for repeatedly talking to cops in any capacity, going to the station to talk to cops, etc.

If a judge wouldn't suppress a confession based on the above, what types of mistakes would the police need to make for a judge to rule on the admissibility of the confession, outside of purposefully coercing the confession?

Your scenario sounds like a really solid confession to me.

jclarkdawe
07-12-2017, 04:30 AM
Suppressing any evidence is a crap shot. It's mainly used as leverage in negotiating a plea settlement. Here if I was the defense attorney I'd do a lot of screaming and yelling, but would expect to lose.

A case that is dismissed for an improperly obtained confession has not attached jeopardy to the defendant and charges can be refiled at any time the prosecutor wants to.

Dumb ass lawyer is elevating this attorney several degrees. How this moron is in practice baffles me.

Cases won on technicalities make the news because they so rarely happen. Although I've gotten better plea deals because of police or prosecutor misconduct, I've never had an outright win on the issue, and I can't remember anybody I knew getting an outright win on a technicality. Usually the best you get is another shot at a trial.

Jim

kaitco
07-12-2017, 04:50 AM
Okay, I've got some follow-up questions.

If Miranda rights weren't provided before Dan gave his confession, would this be grounds to have the confession tossed?

Since the police come to Dan's apartment and request that he come down to the precinct, could the defense attorney "reasonably" argue that Dan had no reason not to believe he was under arrest and should have been given his Miranda rights?

If while the police have Dan waiting, he requests to make a phone call that could presumably have been to his attorney, would that have greater weight with the confession being inadmissible? In the same vein, if Dan specifically asks to call his attorney while he is waiting at the precinct and the police kept saying something like "yeah, just a second", would this have an effect on a judge's decision?

I'm not overly concerned about the fact that the prosecutor can re-file. The defense attorney is supposed to be shady which is why he's "in" on the concept of just getting the initial case thrown out. The goal is to get Dan off and out of this for even a few hours. If the case is dismissed, Dan is free to leave and will be jumping on a bus out of the state shortly after this. My biggest concern is that I don't want this part of the story to come off as wholly outside of how a judge could rule.

blacbird
07-12-2017, 05:14 AM
If Miranda rights weren't provided before Dan gave his confession, would this be grounds to have the confession tossed?


Yes, but . . . The case might still go to trial and a conviction be obtained, depending on the rulings of a judge. A judge might just let the confession stand, and if it results in a conviction, let the defense file an appeal. Not much in a court of law is a slam-dunk certainty.

caw

jclarkdawe
07-12-2017, 06:05 AM
Okay, I've got some follow-up questions.

If Miranda rights weren't provided before Dan gave his confession, would this be grounds to have the confession tossed? Yes, this would be grounds for a judge to toss the confession. Then again, the judge could decide it wasn't grounds.

Since the police come to Dan's apartment and request that he come down to the precinct, could the defense attorney "reasonably" argue that Dan had no reason not to believe he was under arrest and should have been given his Miranda rights?
Absolutely an attorney can and would argue this. Doesn't mean anyone (including the attorney in private) believes it or will buy into it.

If while the police have Dan waiting, he requests to make a phone call that could presumably have been to his attorney, would that have greater weight with the confession being inadmissible? In the same vein, if Dan specifically asks to call his attorney while he is waiting at the precinct and the police kept saying something like "yeah, just a second", would this have an effect on a judge's decision? Could. Then again the judge's hemorrhoids could effect the judge's decision even more. Realize that attorneys have little or no control over which judge gets this case. There's a wide range of results on the same facts from different judges.

I'm not overly concerned about the fact that the prosecutor can re-file. The defense attorney is supposed to be shady which is why he's "in" on the concept of just getting the initial case thrown out. Okay, once he confesses, he gets locked up. He's held until there is a hearing to suppress the confession if he can't make bail. Depending upon the backlog, this can be anywhere from a month to six months after the arrest. So what's in this for the defense attorney? This makes absolutely no sense if if the attorney is a moron. The goal is to get Dan off and out of this for even a few hours. If the case is dismissed, Dan is free to leave and will be jumping on a bus out of the state shortly after this. He can leave town any time he wants before he's arrested. Once he's arrested, he's on bail conditions that do provide significant limitations on him. But if he's arrested, he's goig to sit in jail until there's a hearing and there's no rush. Simply give him bail. My biggest concern is that I don't want this part of the story to come off as wholly outside of how a judge could rule. You could set this up so that it is credible, as stranger things have happened, but planning around this is like arguing that Powerball is your retirement plan.

I don't know where this is set, but jail is a nasty experience. It ranges from Rikers at its worst (hell on Earth would be an improvement) to rather benign jails like New Hampshire has. But nobody likes them and your plan involves him sitting in jail for weeks, if not months, and potentially years.

Jim Clark-Dawe

raelwv
07-12-2017, 06:16 AM
It is by no means unusual that arrested parties agree to talk to police without having an attorney present.

Indeed, it is disturbingly common for people to talk, even after they're under arrest and even after they're given Miranda warnings. As they saying goes, "our clients have the right to remain silent, but not the ability."

Another thing to consider is that Miranda warnings are only required if (1) the person is in custody and (2) there is interrogation. You say that Dan "openly" confesses - if that means he just spills his guts, there's no interrogation and no Miranda issue. Also the issue of "custody" is more complicated than it may seem (Think you're in custody because you're wearing handcuffs? Think again!).

cornflake
07-12-2017, 06:40 AM
Okay, I've got some follow-up questions.

If Miranda rights weren't provided before Dan gave his confession, would this be grounds to have the confession tossed?

No. In your scenario, he wasn't under arrest. He had no reason to be Mirandized.

Since the police come to Dan's apartment and request that he come down to the precinct, could the defense attorney "reasonably" argue that Dan had no reason not to believe he was under arrest and should have been given his Miranda rights?

I mean, yeah, you can argue your client is an epic dumbass, but it won't usually get you anyplace. Ignorance is not an excuse for much. Besides, he left once.

If while the police have Dan waiting, he requests to make a phone call that could presumably have been to his attorney, would that have greater weight with the confession being inadmissible? In the same vein, if Dan specifically asks to call his attorney while he is waiting at the precinct and the police kept saying something like "yeah, just a second", would this have an effect on a judge's decision?

No. You seem to be operating under the impression that having a lawyer, or telling the cops you have one, does something. It does not. Tell a cop, "I have a lawyer,' and you're likely as not to hear, 'that's nice, so do I. Where were you last night?' You have the right to not speak to the cops at all times. You have the right to have an attorney present during questioning, but you have to exercise that right. No one is doing it for you. You have to actually say: 'I want my attorney present during questioning/I do not want to be questioned any more without my attorney,' and actually STOP talking, for that to happen.

I'm not overly concerned about the fact that the prosecutor can re-file. The defense attorney is supposed to be shady which is why he's "in" on the concept of just getting the initial case thrown out. The goal is to get Dan off and out of this for even a few hours. If the case is dismissed, Dan is free to leave and will be jumping on a bus out of the state shortly after this. My biggest concern is that I don't want this part of the story to come off as wholly outside of how a judge could rule.

I'm confused by your last.

kaitco
07-12-2017, 03:57 PM
Lots of good stuff to consider regarding Miranda rights.

I may have to Plan B this and work around the judge's corruption in the story instead. I think I've left myself some wiggle room with whether the police are actually "interrogating" Dan once they have him in a room.

You've all given me a lot of great information. Thank you kindly!

ironmikezero
07-12-2017, 08:28 PM
When you rethink your scenario, keep this in mind . . . (raelwv mentioned it) a voluntary admission is almost always admissible. A voluntary admission is a statement made in the absence of relative questions--no one asks about the specific crime, but the person just starts talking about their role in it. Miranda is moot in this case. (It happens more often than most folks would believe.)

Wesley_S_Lewis
07-13-2017, 07:39 AM
Indeed, it is disturbingly common for people to talk, even after they're under arrest and even after they're given Miranda warnings. As they saying goes, "our clients have the right to remain silent, but not the ability."

Another thing to consider is that Miranda warnings are only required if (1) the person is in custody and (2) there is interrogation. You say that Dan "openly" confesses - if that means he just spills his guts, there's no interrogation and no Miranda issue. Also the issue of "custody" is more complicated than it may seem (Think you're in custody because you're wearing handcuffs? Think again!).

This is the one thing that jumped out at me--from Kaitco's description of the scenario, it sounds like Dan came to the police station and spoke to the police of his own free will. I'm not an attorney, but it's my understanding that anything Dan says while free to go is admissible. Is there any scenario in which the absence of a Miranda warning and/or a request for counsel could serve as grounds to toss an admission made by someone who was free to go?

WeaselFire
07-13-2017, 05:52 PM
Suppressing any evidence is a crap shot. It's mainly used as leverage in negotiating a plea settlement. Here if I was the defense attorney I'd do a lot of screaming and yelling, but would expect to lose.

This, definitely. I've seen cases successfully prosecuted where no Miranda warning was given even when challenged by the defense. Heck, most criminals babble everything before anyone even questions them, usually bending the story to blame their partner.

Jeff

evangaline
07-14-2017, 06:29 AM
The US Supreme Court ruled in 2010 that a suspect's request for a lawyer during a police questioning doesn't last forever. Judge Scalia wrote that an initial request for an attorney doesn't mean the police can never question him again. He wrote when a suspect "has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced." The court decided on an arbitrary time of fourteen days. Don't know if that helps your scenario! *g*

charlene
07-14-2017, 01:38 PM
Based on the fact pattern in the opening post, if the situation is not a custodial interrogation where Dan is not free to go, police are not required to provide Miranda warnings or contact counsel before questioning Dan. Dan can ask for his counsel to be present, but police are not required to contact counsel before questioning Dan.

In the real world, your fact pattern is unlikely to get your character released from jail anytime soon, for a couple of reasons. First, the general rule is that all detentions and confessions are legal unless a court says otherwise. That means the issue of whether the confession in this case is legal will require a motion to suppress, which could be decided as early as the preliminary hearing in a few days, or it could take months to decide, which is usually the norm.

Second, even if the confession is ultimately determined to be unlawfully obtained, it usually means the confession is inadmissible in the DA's case-in-chief. But it can still be admissible in rebuttal if the defendant takes the stand and lies. So even if the confession was obtained unlawfully, it’s not fatal to the DA's case and doesn't necessarily lead to a dismissal unless the DA's entire case rested on the confession.

Bail is the quickest way for your character to get out of jail after the case has been filed. If you need a situation where the case is likely to be dismissed quickly, I suggest finding a defect with the case. For example, the crime took place in a neighboring county and the DA has no jurisdiction to prosecute and the case has to be dismissed. But even this would take several days.

However, if you need the dismissal to center around the interrogation, remember that interrogation rooms are usually equipped with recording devices, and the recording could help with your motion to suppress the confession. That said, you’d be surprised by the number of transcript that I’ve read where officers testify the recording devices weren’t working during questioning.

Hope this helps.