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MIRANDA – "You've gotta fight for your right . . . to remain silent"'

Too often, my clients believe the silver bullet to their case is the officer did not read them their Miranda rights. This leads to the uncomfortable conversation that Miranda will often not apply to their case. For starters, Miranda will only save you (1) after you've been placed in custody and (2) if the officer asks you questions related to the offense. This leads to a host of legal loopholes with regard to "are you REALLY in custody" and "did the officer QUESTION you, or did you just CONFESS out of a feeling of guilt?" Unfortunately, these arguments rarely arise until the jury is in the hall and trial is ready to begin.

Miranda doesn't help when you are standing un-handcuffed in front of an investigating officer insisting, "It will be better for you if you just tell me what happened." Second to that, there's the ten-minute silent treatment as the officer looks at you awaiting your confession. It's difficult under these circumstances to know or remember that even though you have a right to remain silent, you MUST exercise it. You are not protected from an officer's continued and unending questions – unless you invoke. You are not safe from waiting in a chair for hours on end across from an inpatient detective – unless you invoke. Telling investigators a hundred or a thousand times that you did not commit the crime will not trigger a Miranda violation – unless you invoke. The only successful way to protect you from yourself is to TERMINATE the conversation if you are not in custody or invoke your right to remain silent AND demand your attorney immediately if you are in custody.

It's of no help to my clients that Miranda's impact has been whittled down over the years. In 1966, the Supreme Court established that police must inform suspects of their rights and those rights must be waived before police may continue with interrogation. Since that time, the courts have been scattershot in their decisions of what requires Miranda. Now, a client's knowledge of what will be used against her in court is about as accurate as wearing a blindfold and hitting a bull's eye. For example, you have to speak if you want to invoke your right to remain silent. Berghuis v. Thompkins. This is a useful fact, since your pre-arrest silence is something that can be used against you in trial. Jenkins v. Anderson or Salinas v. State. (It's important to remember your post-arrest silence is still protected – unless the State can prove that sitting quietly on the curb in handcuffs is just an investigative stop and not an arrest). Just because you ask for an attorney before you are placed in custody, doesn't mean that you are protected from questioning after you are placed under arrest. Bobby v. Dixon. Being in jail for one offense, doesn't mean you are in custody for a separate offense. Howes v. Fields. And the list goes on.

At the end of the day, there are no certainties when facing the working end of an officer's investigation. An officer wants to arrest the right guy. And as his suspect, you want that officer to know that you are not that person. Fight that instinct and fight for your right to remain silent. The safest way to protect your freedom from an overzealous officer and a confused jury is to STOP answering questions, demand an attorney immediately, and DO NOT volunteer anything . . . ever.

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