"At that point, police are obligated to stop questioning you. "
If you are not in custody and the police can articulate that you knew you were not in custody, you don't have a 4th amendent right to a lawyer. That right is added after you are arrested. They can question you all they want and if you answer it will be admissable.
Lawyer talk: Post shooting
Moderator: carlson1
TEX,
I am sure that (the quote in the original post) is John Farnam material. "Tape-loop" is one of his favorite sayings/descriptors. The wording is almost identical to what I heard in his classes and what I read in his books. Good stuff.
[changing posts...]
And whether one is officially in custody or not, 4th Amendment or not, insisting on talking with one's lawyer before answering any questions is probably a good idea.
elb
I am sure that (the quote in the original post) is John Farnam material. "Tape-loop" is one of his favorite sayings/descriptors. The wording is almost identical to what I heard in his classes and what I read in his books. Good stuff.
[changing posts...]
And whether one is officially in custody or not, 4th Amendment or not, insisting on talking with one's lawyer before answering any questions is probably a good idea.
elb
It's the sixth amendment not the fourth that grants you that right.Penn wrote:"At that point, police are obligated to stop questioning you. "
If you are not in custody and the police can articulate that you knew you were not in custody, you don't have a 4th amendent right to a lawyer. That right is added after you are arrested. They can question you all they want and if you answer it will be admissable.
-
HankB
- Senior Member
- Posts in topic: 1
- Posts: 1394
- Joined: Mon Aug 08, 2005 2:03 pm
- Location: Central TX, just west of Austin
Here's a question . . . should family members who were not involved in the actual shooting - they didn't pull the trigger - stay around, or should they leave, making a beeline for an attorney?
If they're not around to be questioned, they can't say the wrong thing. And it's entirely plausible that getting away from a scene of violence is the reasonable thing to do, especially if there are children.
As far as the response to being asked if you know your rights, I've been told a good response is "No, officer, I need my own lawyer to explain them to me." This serves the dual purpose of denying that you know your rights, AND reinforces your desire to speak with an attorney.
Asking the responding officer for medical attention serves several purposes - first, it makes you look more like a victim, and LEOs are trained to help victims. Second, you just may NEED it at any moment - who knows what the adrenaline and stress hormones are doing to you? Third, when transported, it gets you away from the scene, and any photographers, newsies, the dead BG's friends, etc.
If they're not around to be questioned, they can't say the wrong thing. And it's entirely plausible that getting away from a scene of violence is the reasonable thing to do, especially if there are children.
As far as the response to being asked if you know your rights, I've been told a good response is "No, officer, I need my own lawyer to explain them to me." This serves the dual purpose of denying that you know your rights, AND reinforces your desire to speak with an attorney.
Asking the responding officer for medical attention serves several purposes - first, it makes you look more like a victim, and LEOs are trained to help victims. Second, you just may NEED it at any moment - who knows what the adrenaline and stress hormones are doing to you? Third, when transported, it gets you away from the scene, and any photographers, newsies, the dead BG's friends, etc.
At some point, ask if you can leave. If they won't let you, then they'll have a hard time arguing that you knew you weren't in custody.Penn wrote:If you are not in custody and the police can articulate that you knew you were not in custody, you don't have a 4th amendent right to a lawyer.
Last edited by HankB on Tue Oct 02, 2007 10:06 pm, edited 1 time in total.
Original CHL: 2000: 56 day turnaround
1st renewal, 2004: 34 days
2nd renewal, 2008: 81 days
3rd renewal, 2013: 12 days
1st renewal, 2004: 34 days
2nd renewal, 2008: 81 days
3rd renewal, 2013: 12 days
-
srothstein
- Senior Member
- Posts in topic: 1
- Posts: 5308
- Joined: Sat Dec 16, 2006 8:27 pm
- Location: Luling, TX
I needed to correct Penn's point about your rights and police custody. He has confused your rights with the requirements on the police. You always have the right to refuse to talk to the police without a lawyer, even as a witness. The police only need to give you your Miranda warnings if you are in custody and they want to ask you questions. These are all your Fifth Amendment rights, though you also get a right to a lawyer under the Sixth Amendment, it does not kick in until adversarial court proceedings have begun (you are indicted or booked).
As a second point, if you claim you do not understand your rights, you have just invalidated your request for a lawyer, which clearly showed you did understand your rights. There is no problem with saying you understand your rights (as they were read to you, not as the courts might interpret them BTW). Then you can make a valid claim that you want a lawyer. I am not sure exaclty what effect this would have legally, but your first statement that you wanted an attorney is no longer valid since you have to understand your rights to make that claim.
A word of advice on this is that the SCOTUS has repeatedly ruled that to be a valid claim, the demand for a lawyer must be clear and unequivocal. You must be clea rand say "I will not answer questions without a lawyer" or very similar words. If you say "I think I better talk to my attorney" it is not a clear and valid statement.
I strongly suggest that eery person with a CHL already have the name and phone number of a lawyer they can call at any time. You do not need to keep him on a paid retainer, but establish a relationship so you can call one when you need one. You do not want to have to rely on the public defender in this emergency type of situation. The court may also say you are not indigent and refuse to appoint one.
As a second point, if you claim you do not understand your rights, you have just invalidated your request for a lawyer, which clearly showed you did understand your rights. There is no problem with saying you understand your rights (as they were read to you, not as the courts might interpret them BTW). Then you can make a valid claim that you want a lawyer. I am not sure exaclty what effect this would have legally, but your first statement that you wanted an attorney is no longer valid since you have to understand your rights to make that claim.
A word of advice on this is that the SCOTUS has repeatedly ruled that to be a valid claim, the demand for a lawyer must be clear and unequivocal. You must be clea rand say "I will not answer questions without a lawyer" or very similar words. If you say "I think I better talk to my attorney" it is not a clear and valid statement.
I strongly suggest that eery person with a CHL already have the name and phone number of a lawyer they can call at any time. You do not need to keep him on a paid retainer, but establish a relationship so you can call one when you need one. You do not want to have to rely on the public defender in this emergency type of situation. The court may also say you are not indigent and refuse to appoint one.
Steve Rothstein
-
Renegade
You got it backwards. I do not understand my rights, that is why I need an attorney to explain them to me. The fact you have already had to correct people in this thread shows many do not know them, hence the validation they need a lawyer to explain them to them. If you knew your rights, you would not need a lawyer.srothstein wrote: As a second point, if you claim you do not understand your rights, you have just invalidated your request for a lawyer, which clearly showed you did understand your rights. There is no problem with saying you understand your rights (as they were read to you, not as the courts might interpret them BTW). Then you can make a valid claim that you want a lawyer. I am not sure exaclty what effect this would have legally, but your first statement that you wanted an attorney is no longer valid since you have to understand your rights to make that claim..
Just like I do not understand probate, I need a lawyer to make my will.
Just like I do not understand any complex subject, which has experts available for hire to explain it to me.
A note about "in custody": whenever you reasonably believe that you are not free to leave, you're in custody. You don't have to be physically restrained in any way. Whether through deception, intimidation, or ambiguous answers, if the officer(s) cause you to believe you're not free to go, or that you must agree to some conditions or answer questions before leaving, then you're in custody.
This is a case law minefield for officers.
This is a case law minefield for officers.
AAAHH! That was one freaky image that went thru my head when I read that!srothstein wrote:I needed to correct Penn's point about your rights and police custody. He has confused your rights with the requirements on the police. You always have the right to refuse to talk to the police without a lawyer, even as a witness. The police only need to give you your Miranda warnings if you are in custody and they want to ask you questions. These are all your Fifth Amendment rights, though you also get a right to a lawyer under the Sixth Amendment, it does not kick in until adversarial court proceedings have begun (you are indicted or booked).
As a second point, if you claim you do not understand your rights, you have just invalidated your request for a lawyer, which clearly showed you did understand your rights. There is no problem with saying you understand your rights (as they were read to you, not as the courts might interpret them BTW). Then you can make a valid claim that you want a lawyer. I am not sure exaclty what effect this would have legally, but your first statement that you wanted an attorney is no longer valid since you have to understand your rights to make that claim.
A word of advice on this is that the SCOTUS has repeatedly ruled that to be a valid claim, the demand for a lawyer must be clear and unequivocal. You must be clea rand say "I will not answer questions without a lawyer" or very similar words. If you say "I think I better talk to my attorney" it is not a clear and valid statement.
I strongly suggest that eery person with a CHL already have the name and phone number of a lawyer they can call at any time. You do not need to keep him on a paid retainer, but establish a relationship so you can call one when you need one. You do not want to have to rely on the public defender in this emergency type of situation. The court may also say you are not indigent and refuse to appoint one.
The phrase I quoted was "the police are obligated" to stop talking to you. Obviously they can not force you to answer. I never said they could. If you are not in custody the police are NOT obligated to stop talking to you.
I was wrong - fifth not fourth amendment. The sixth amendment about right to counsel only attaches after you have been processed in court (as previously stated). As such, police are forbidden to question you (without a lawyer) about a specific case after you have been to court for that case, even if you are not in custody.ccwtexas wrote:It's the sixth amendment not the fourth that grants you that right.Penn wrote:"At that point, police are obligated to stop questioning you. "
If you are not in custody and the police can articulate that you knew you were not in custody, you don't have a 4th amendent right to a lawyer. That right is added after you are arrested. They can question you all they want and if you answer it will be admissable.
-
dihappy
- Senior Member
- Posts in topic: 1
- Posts: 907
- Joined: Thu Aug 10, 2006 8:00 pm
- Location: San Antonio
Which doesnt make much sense since you (shooter) were the one insisting on not speaking until your lawyer arrives :)seamusTX wrote:Part of a Miranda warning is asking the suspect if he understands his right to remain silent. If he says he doesn't understand it, the police are better off not talking to him.JoshL wrote:Just out of curiousity, what is the reasoning in saying that you don't understand your rights?
Personally, IMHO, IANAL, etc., I would not lie or falsify. It is perfectly legal and justified to say nothing at all.
- Jim
Not to mention the fact that id be hard pressed to find a CHL holder NOT know his right to remain silent or to an attorney :)
