Having An Attorney Present When Meeting With Police

Interviewer: Am I obligated to meet with the police or a detective if they call me, or can I request a lawyer first?

Glen Malia: Absolutely. You are never obligated to meet with anyone from the police agencies, and the answer to the question is yes, it makes a lot of sense to call a lawyer. Once you bring in a lawyer, once you tell the police you're represented by a lawyer, the police can't even talk to you without the lawyer being present. No, you do not have to talk to the police. You don't have to go down and meet with the police, and if you do, if you are interested in talking with the police and going down and meeting the police, it makes a lot of sense to talk to a lawyer first. Frequently it makes a lot of sense to have the lawyer with you when you go down.

Miranda Rights Have Nothing To Do With Dismissal Of Charges In New York

Interviewer: If they're not read their Miranda Rights, does that mean their case is automatically going to be dismissed?

Glen Malia: That's a good question, because that's a frequent thing that comes up. The answer is no. Miranda Rights do not have anything to do with whether or not the charges can be dismissed. The Miranda Rights only apply to any statements a defendant in custody may have given and whether or not those statements can be used against you. If a person gets arrested and the police do not read the Miranda Rights but the person gives absolutely no statements to the police, it doesn't make a difference; no harm, no foul.

Miranda Rights Have Validity Only After An Individual Has Been Arrested

If the person gets arrested and the defendant gives a statement to the police after they've been arrested, now we have to look in, were the Miranda Rights given? If the Miranda Rights were given and the person gives a statement, then that statement can be used against that person at trial. If the Miranda Rights were not given and the person gave a statement, then you have to look at, okay, was the statement a result of police questioning or was it basically just a spontaneous statement by the defendant? Let me explain the difference between that. A guy gets arrested, seated in the back seat of the car. They're driving back to the police station and the police officer says, "So, tell me, Joe says that you beat him up. Is that true?" Okay? Well, that's a statement that's subject to police questioning. The police officer asked the question and the defendant now answers the police officer's question. If the Miranda Rights had not been given, that statement is not usable against the defendant.

A Statement Should Not Be Provided to the Police In Order to Avoid Self-Incrimination

However, same scenario except the police officer is sitting there quietly saying nothing, just driving quietly, and the defendant in the back seat says, "Officer, I've got to tell you. Joe is full of shit. I never touched him. He came at me and I punched him. I punched him five times in self-defense.” Well, you know what? That was not as a result of police questioning, so even if the Miranda Rights were not given, that statement may be admissible into evidence against the defendant. If the defendant never gives any statement, then the fact of whether or not Miranda Rights were given has no bearing on the case.

Malia Law, LLC located in Cortlandt Manor, NY represents Landlords/Tenants throughout Westchester County, Putnam County and Southern Dutchess County, NY.

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