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Am I Free to Leave?

If you’ve seen your share of episodes of Law & Order, or any show like it, you may be able to recite these words by heart

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed to you.

You might hear those sentences and think of them as “Miranda warnings,” named for the US Supreme Court case Miranda vs. Arizona. You might recognize them as the 5th Amendment right against self-incrimination and the 6th Amendment right to counsel found in the Constitution. In your mind, they might simply be: “being read your rights.” But no matter how many times you’ve heard them said on television, most people don’t exactly understand how and when they apply.

It’s not true that any person being arrested must be informed of these rights, and that not being “mirandized” means the case must be dismissed. Those words must be read to a person who is 1) subject to law enforcement interrogation while that person is 2) in custody. If both of those factors are not present, rights not being read does not necessarily pose a legal problem.

As a result, in criminal cases that involve someone accused of a crime making incriminating statements to police and the prosecution attempting to use those statements against the accused in trial, there is typically quite a bit of argument about whether that statement should be admissible at trial. Depending on the facts of the case, if the rights were not read prior to a statement being made, prosecutors may argue that the person charged with the crime was either not in custody or not subject to interrogation. On the opposite side, a defense attorney might argue in response that their client was in custody even if not technically arrested because that person was not free to leave (aka “detained”) or was subject to interrogation even if the questions were not asked in a small room with a bright light shining in their eyes while detectives demanded answers.

In New Jersey, something big just happened in this realm. The New Jersey Supreme Court just unanimously decided that in a case where a person alleged to have committed a number of indictable crimes, including murder, the accused’s statement—which he gave without being read Miranda warnings— was improperly admitted as evidence against him at trial. The Court found that the statement coming in constituted harmful error and the defendant is entitled to a new trial as a result.

The Court disagreed with the State’s argument that because the defendant was considered a victim by law enforcement at the time of the questioning, there was no requirement to provide Miranda warnings. Instead the Court stated that a reasonable person in the accused’s position would not have felt free to leave based on the circumstances he was in, and therefore he was “in custody.”

So back to Law & Order. When the suspect is in the interrogation room and asks for a lawyer, do you notice the disappointment of the detectives and police officers? There’s a reason for that! People hire criminal defense lawyers when they need someone who understands the often confusing statutes and rules they have suddenly been confronted with to advocate for them and above all, to protect their rights.

The problem is that the right to remain silent almost always comes up before a person even realizes that they need an attorney. It comes up in an exceptionally stressful scenario where the person who needs a lawyer realizes there’s a possibility that they don’t go home that night, and so they make a statement in hopes of getting out of a jam. It’s an incredibly difficult situation, and even people educated about the criminal justice system do not always protect their own rights when they’re in that position.

Saying that you want a lawyer is something only the person being questioned can do. So if you ever find yourself in the unfortunate position of being accused of a criminal offense and are considering making a statement without counsel present, ask yourself the following:

  • Would I feel better if I had a lawyer here with me?
  • Am I free to leave?

If you have a sneaking suspicion that if you were to attempt to walk out of the room or away from the law enforcement officer in front of you that you would be prevented from doing so, YOU ARE IN CUSTODY. Whether you have been provided Miranda warnings or not—and remember that they are called “warnings” for a reason—this is the right time to ask for a lawyer. It is very tempting to believe that you will talk your way out of trouble, but the odds are not in your favor.

An experienced criminal defense attorney like Amber L. Forrester, Esq. will be able to protect your rights and advocate for you even when you are facing the most serious allegations, but it is almost always up to YOU to protect your right to remain silent when first accused. Protect yourself by stating that you would like your lawyer present, and then contact Forrester Law Firm to see how we can help.

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