Here is the legal reasoning behind the idea that one accused of a crime should NOT talk to the police until they have consulted with an attorney- Asking for a lawyer is an exercise of the suspects Fifth Amendment Miranda rights, and should terminate further questioning by police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.CT. 1880, 68 L.Ed.2d 378, 386 (1981). But even if a conversation taking place after the accused has expressed his desire to deal with the police only through counsel, is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of Fifth Amendment right to have counsel present during the interrogation. Bradshaw, 462 U.S. at 104. See also Fleming v. Kemp, 837 F.2d 940, 947 (11th Cir. 1988) [a broad interpretation must be given to a request for counsel so that accuseds indication he would get his own attorney was an invocation of the right]. Now here is the part where if your not a lawyer, you may misinterpret your rights under the United States Constitution, so get a lawyer: In McNeil v. Wisconsin, 501 U.S. 171 (1991), the United States Supreme Court held that a defendants invocation of his Sixth Amendment right to counsel at a hearing does not give rise to his Fifth Amendment right to counsel regarding a different offense than the one addressed in the previous hearing. . The Sixth Amendment right to counsel is offense specific thus the Supreme Court held [i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced.... McNeil 501 U.S. at 179, Although any incriminating statements pertaining to other crimes would only be admissible at the trial of those offenses. McNeil v. Wisconsin, 501 U.S. 171, [quoting Maine v. Moulton, 474 U.S. 159 n.16 (1985)]. Although the United States Supreme Court had recognized the significance of formal charges being brought against an accused when it held that even a generalized request for counsel precludes subsequent questioning of the accused without counsel present, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) overruled by Montejo v. Louisiana, 556 U.S. 778 (2009). The Court held that the formal attachment of the Sixth Amendment right to counsel alone has no effect on the rules governing overt police questioning. So, (CAN YOU BELIEVE THIS HOLDING) a suspect who has not asked for a lawyer may be further questioned by police and the district attorney or United States Attorney without counsel present. See Patterson v. Illinois, 487 U.S. 285, 291, (1988). Thank God for the rednecks in the Texas Legislature however, since here in Gods Country (TEXAS), a defendants silence cant be used against him or her regardless whether he had been Mirandized or not, based on independent Texas State Constitutional grounds. TEX. CONST. Art. I, § 10. See also Sanchez v. State, 707 S.W.2d 575, 580 (Tex.Cr.App. 1986), where the Texas Court of Criminal Appeals held that pursuant to Article i, Section 10 of the Texas Constitution, when the defendant is arrested he has the right to remain silent, and the right not to have that silence used against him, even if for impeachment purposes regardless of when he is later advised of his rights.. Therefore, if the police ask you a question, Keep your mouth shut, at least until you have had the opportunity to consult an attorney.
Posted on: Fri, 10 Oct 2014 01:09:03 +0000
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