Know Your Miranda Rights or Warning
and How to Use Them
Miranda Rights: What do to and what not to do
Fraud victim arrestees come to us having waived their Miranda Rights or Warning, sometimes having unwittingly made self-incriminating statements to law enforcement.
None realize that this is what they did. None realize that they have caused themselves additional harm.
There is never any guarantee that justice will prevail in the way the fraud victim arrestee expects. In those instances where the victim has waived his Miranda Rights, unwinding the damage and achieving justice for that victim is almost impossible.
Interview: the period of questioning by law enforcement investigators prior to arrest. You have no obligation to consent to an interview, nor should you feel at any time that you are under arrest during an interview. You should be able to leave at any time. Law enforcement must inform you that you are free to go, and there must not be any physical obstacles between you and the exit door nor any impediments to your departure.
Interrogation: the period of questioning by law enforcement investigators after the reading of the Miranda Rights or Warning and proper arrest.
Person of Interest: this a term you may frequently hear in the news. It is normal Justice Department parlance for subjects of investigation and includes 'suspect', 'subject' and 'target'. http://en.wikipedia.org/wiki/Person_of_interest If you are termed a "Person of Interest" and the police want to interview you, Stop. You need an attorney present to protect you from making unintentional self-incriminating statements. ^ Top
These are the Miranda Rights or Warning
as dictated by Miranda vs.Arizona
In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed:
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
This is the text of the Miranda Rights or Warning
that must be read to you upon arrest, and how they should read on the document you sign stating that you understand those rights:
You have the right to remain silent. Anything you say will be used against you in a court of law. You have the right to an attorney during interrogation; if you cannot afford an attorney, one will be appointed to you.
1. "You have the right to remain silent" means KEEP YOUR MOUTH SHUT. It's not called a Warning for nothing. You may safely state the following:
2. "Anything you say will be used against you in a court of law" means that anything you say will be used against you in court. You can count on it.
3. "You have the right to an attorney during interrogation" sounds as if you can invoke your right to an attorney at any time during the interrogation. Don't count on it and don't bet on it. Ask for an attorney before the interrogation.
3. "But I don't need an attorney! I didn't do anything wrong!" is the most disastrous phrase a fraud victim can say to law enforcement detectives, because it tells the detectives that they can use all interrogation techniques at their disposal without the presence of advising counsel to warn you to keep your mouth shut.
Fraud victims who are arrested are always an emotional disaster area, frightened, confused, angry, and not thinking straight. In other words, ideal for interrogation.
Law enforcement works for the prosecution. If you are considered a suspect in a crime, the police are not on your side, even if you are a fellow law enforcement officer.
No matter who you are, no matter what your job title is, from President of a major corporation, to law enforcement, to professional, to housewife, to politician, to business owner, to Hollywood star, to college student, during an interrogation the police are not your friends, no matter how they act. ^ Top
Law enforcement and the fraud victim as a suspect.
The police do not interview a person about his or her participation or knowledge of a crime unless that person is suspected of having committed a crime or been a participant in the commission of a crime.
Participation means having an active involvement in, or purposely unreported knowledge of, the crime before, during, or after it was committed. The legal terms are Accessory Before the Fact, Accessory During the Fact, and Accessory After the Fact
Fraud is a theft crime, sometimes only State, sometimes only Federal, sometimes both.
If you are a fraud victim contacted by the police:
1. Unless you are witnessed committing a crime by someone at the scene or by law enforcement and the arrest if proximate to the crime, you cannot be arrested without an arrest warrant signed by a judge. You have a right to read the warrant, and you have the right to a copy of the warrant.
2. Do not accompany the police anywhere until you are properly arrested and have been read your Miranda Rights or Warning. Merely state that you "respectfully decline." If all they want to do is talk to you, they can do so where you are at that moment or at your home.
If the police are agreeable to an interview at your location of choice, do not speak to them without a witness and, if possible, a tape recorder in plain view Say, "Do you mind if I tape this conversation?" If the police object to either the witness or the tape recorder, respectfully decline the interview.
You do not have an obligation to accompany the police to their offices, and we don't recommend that you do unless you're going to be looking at mug shots.
Your legal protections don't start until you are placed under arrest. You have no legal protection until that moment.
3. Once you have been read your Miranda Rights or Warning, SHUT UP.
4. If you are asked to sign a document agreeing that you have been read your rights and understand them, STOP. Read the document slowly and carefully. Take your time.
Make very sure the document doesn't also contain a waiver of your Miranda Rights and if it does, make very sure you are signing on the correct line. Place your finger, not an X, on the correct line and sign your name next to your finger.
5. Immediately invoke your right to private consultation with your attorney, court-appointed or otherwise.
6. Do not under any circumstances, sign any document between the time you have read your Miranda Rights or Warning and the time you consult with your attorney except:
7. NEVER WAIVE ANY RIGHTS. Do not, under any circumstances, waive your Miranda Rights. Keep your mouth shut. Do not start talking. If you hear yourself talking, stop it. It is possible that if you start answering questions, it may be construed by the District Attorney's Office that you waived your rights.
8. Invoking your Miranda Rights does not mean you will go to jail. No one can advise you that if you do not waive your rights, you will go to jail. That is against the law. It may be termed Intentional Infliction of Emotional or Mental Distress. http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress
9. No one can truthfully say, "It will go easier on you if you don't ask for an attorney." That is a myth created in Hollywood. Only a jury can decide your fate.
10. Law and Order and NYPD Blue are not real life. Do not make life-altering decisions based on what you have seen on those shows.
Detectives interview and interrogate bad guys all day every day. They study interview techniques, interviewing psychology, body language, tone of voice, phrases to watch for, discrepancies and changes in answers. It is their job to elicit a confession of guilt or to elicit incriminating statements from suspects.
They are as skilled at their job as the scammer is who talked you into the fraud. You are a fish out of water. You can incriminate yourself in the blink of an eye with a statement you believe will absolve you of all guilt. Just keep your mouth shut!
The Constitution guarantees the presumption of innocence. In too many jurisdiction and in too many circumstances the investigating detectives operate under the presumption of guilt. ^ Top
You and your attorney
You and your attorney are a team. He is not the master. You do not simply nod your head up and down like a bobble toy at everything he says. You must actively participate in your own defense.
There is no such thing as a stupid question. The rest of your life is at stake. If you do not completely and clearly understand a statement and the consequences of that statement, do not agree until you do.
Demand of your attorney that he ask for broad discovery, as broad as you can make it. Broad discovery means any and all information and documents held by the prosecution that pertain to your case. You cannot mount an intelligent defense if you do not know what you are up against.
No one has the right to take away your right to a trail by a jury of your peers. You can give it up (plea bargain) but no one else can take it away from you. It is a Constitutional Right.
Pleading out, i.e. pleading to a lesser charge, means that you are turning your fate over to the very people whose job it is to put you in prison. If you are not guilty of any charges, don't agree that you are.
If your attorney, public defender or otherwise, pleads you out without your full understanding of the consequences, don't do it. What you are doing is entering a guilty plea.
The alternative is a trial by a jury of 12 impartial men and women who have no vested interest in the outcome, no hidden agenda. ^ Top