Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: “Does My Case Get Dismissed If The Police Did Not Read Me My Miranda Rights While Arresting Me For Murder?” (Part One)

This is a question I encounter many times from clients. People do not seem to understand the rules regarding what rights the police must read them at the time of arrest, or around that time, and what happens if they do not. The rules are the same here in Massachusetts, whether the case be for a felony like murder or a misdemeanor like shoplifting.

File this one under the drawer marked “Trying To Outsmart The Investigating Officer” in the “What Not To Do” cabinet.

For those of you who are not sure, the so-called “Miranda Rights” (hereinafter, the “Rights”) originated from a United States Supreme Court ruling years ago. The aim was to ensure that folks who were interrogated by the police understood their rights not to talk to the police while in custody. In fact, it also was to make sure that said suspects were aware of what would likely happen to any statements made during said interrogation.

We have all seen the Rights in action on television and in the movies. They advise the suspect, in fairly routine words that he/she has the right to remain silent and the right to have an attorney present, that if they cannot afford an attorney then one will be appointed and that anything he/she says will probably be used against them in court.

This is part of the criminal justice procedure which we call “search and seizure“.

Of course, it might be helpful if the language were updated.

It might have more impact on many folks in 2010 to say something like, “You do not have to talk to us. If you were smart, you would ask for a lawyer first who will tell you not to talk to us. That right is so important that we’ll even give you a lawyer if you can’t get one yourself. In case we have not made it clear that you would be crazy to talk to us, please understand that anything you tell us, or we interpret from what you are telling us, will come back to bite you when this case gets to court, both in bail arguments and trial. Now, knowing all that….you don’t still want to talk to us do you?”

It would be helpful if any such new procedure had at least two other officers sitting in the room shaking their heads from side to side at this point.

In fact, in my experience, it might be even more appropriate to add a line which indicates, “Oh, and you know all those promises I made to you before about letting you go as soon as you tell us your version of things because we only want the truth and we don’t really believe the complainant anyway? Those were all lies. Please disregard them now.”

But, alas, we have what we have. Reality-wise, though, there are still instances wherein the police do not read the rights in a timely fashion or in a clear and complete way.

When this happens, some people figure that they have won the criminal justice lottery. They tell me about the lack of Rights with a big smile and, nodding their head in a suggestive manner, they ask me if this means that the court will have to dismiss the case.

In most cases, I have to deliver the bad news of…no.

You see, the Rights only have to do with statements made by a defendant while in a custodial interrogation. The remedy is to have a suppression hearing to prevent the prosecution (state or federal) from using the statement against the defendant. Therefore, if the defense is successful in the motion to suppress, the statement will be unusable by the prosecution. Further, any evidence resulting solely from that statement will also likely be suppressed.

In most cases, though, this will not mean the end of the case. This is especially true in long term investigations because, as I have written in the past, getting a statement from the target of the investigation usually happens once the investigators have already decided to arrest that individual. They are looking for icing on the judicial cake in talking to him or her. Therefore, it is unlikely that their case will be based on either the statement or what that statement leads to.

Although this seems fairly simple, it is not as simple as you might think. It is, however, very important.

Important enough to make this a two-part blog. Therefore, especially since I was unable to post yesterday due to my trial schedule, I will post Part Two of today’s blog on another special Saturday Posting.

Until then, please remember that if you wish to discuss a criminal case with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

And…as always…. Have a great, safe and law-abiding weekend!

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