Closing arguments today in the Kyle Rittenhouse trial. Post-trial legal analysis, Live at 7pm ET. Also, the firearms possession count – count 6 – was dismissed by the judge prior to closing arguments beginning. The evidence is closed and attorneys for each side gets to make their arguments to the jury. Here’s my take…. Join me Live at 7:00 p.m. ET. Freedom is Scary – Ep. 83.
Some armchair legal quarterbacking following day 8 of the Kyle Rittenhouse self defense trial in Wisconsin. This is an important firearms related self defense case which illustrates the importance of attorney skill and tactics in jury trial advocacy. There’s been some surprising events so far in the trial, including the testimony of the defendant himself today. In fact, something shocking happened during Kyle’s cross examination which may itself be a constitutional violation. Join me to watch some of it and discuss…… Freedom is Scary Episode 80:
Should someone talk to the police without a lawyer present?
- The criminal justice system overwhelmingly depends on people to unwittingly incriminate themselves for convictions, which they do.
- If a criminal suspect invokes the right to counsel, or the right to remain silent, they generally don’t incriminate themselves.
- A criminal suspect need only request a lawyer for all interrogation to stop. They DO NOT need to already have a lawyer – just to ask for one. Just a lawyer in general. These are magic words which stops an interrogation.
Custodial interrogation cannot take place with Miranda warnings and a waiver of the rights to remain silent and the right to have a lawyer present before and during questioning.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”5th Amendment to the U.S. Constitution
When are Miranda Warnings required to be read? Miranda warnings are required to be given when a suspect is in custody and being interrogated OR when a suspect believes that he is in custody and being interrogated. “Interrogation” includes not only express questioning but also its “functional equivalent,” namely, any conduct “that the police should know [is] reasonably likely to elicit an incriminating response.” When is someone in custody? That depends. Were they asked to exit a vehicle during a stop? Were guns drawn? Was force used? Were they placed in handcuffs? Were they told they weren’t free to leave?
A suspect can waive Miranda rights, but cannot waive the reading of Miranda warnings by law enforcement. Miranda warnings may need to be read again by police if too much time has elapsed in between the reading of the warnings and the subsequent interrogation.
When are Miranda Warnings NOT required to be given?
Officers can conduct general on-scene questioning as to facts surrounding a crime or other general fact finding without Miranda warnings. Officers can ask about the guilt of others/third parties without giving Miranda warnings. Miranda warnings don’t apply to voluntary statements made prior to interrogation. Miranda warnings don’t apply to statements of guilt made to persons other than law enforcement. Miranda warnings don’t apply if the person interrogated is not in custody.
Miranda warnings are generally not required at traffic stops. See Pennsylvania v. Bruder , 488 U.S. 9, 109 S. Ct. 205 (1988). In this case, the Supreme Court re-emphasized that ordinary traffic stops do not involve custody for the purposes of Miranda, and therefore, police do not need to inform those stopped for traffic violations of their Miranda rights unless taken into custody. Officers can generally ask any questions they want to suspects who are not in custody. See Arizona v. Johnson, 555 U.S. 323, 333 (2009). “An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”
What about silence? Post-arrest silence by a defendant after Miranda warnings have been given is inadmissible against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). If a defendant gives a statement, however, his silence as to other matters may be admitted. Anderson v. Charles, 447 U.S. 404 (1980); see United States v. Mitchell, 558 F.2d 1332, 1334–35 (8th Cir. 1977). A defendant’s pre-arrest silence may be admitted, Jenkins v. Anderson, 447 U.S. 231 (1980) as well as silence after arrest but prior to warnings. Fletcher v. Weir, 455 U.S. 603 (1982).
When can an officer not interrogate a suspect at all?
An officer may not interrogate if the suspect has requested a lawyer.
An officer may not interrogate if the suspect has in any manner, at any time prior to or during questioning stated that he wishes to remain silent.
What sort of behavior by officers may render a confession invalid in court?
A confession MAY be invalid if obtained as the result of withholding food, drink or bathroom access. A confession may be invalid if obtained following threats, coercing or tricking a suspect into waiving Miranda Rights. A confession may be invalid if the interrogation is too long; or, If physical force is used; or, If promises to help a suspect if he or she confesses; or, If the officer misrepresents the body of evidence collected against the suspect