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Don't Say Anything

December 3, 2018

 

 

In Florida, if you are arrested and taken into custody, you may hear the following warning before any questioning begins:

 

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

 

The warning is based on Miranda v. Arizona[i] and is otherwise referred to as your Miranda warnings or reading you “your rights.”

 

If you are being advised of your Miranda warnings, then immediately shut your mouth and don’t say anything else to anyone until you’ve spoken with an attorney. Period. No matter how much you might want to make a statement there is nothing you can say that usually would make law enforcement un-arrest you at that point. You can’t “fix” the situation on your own. You need counsel and fast.

 

I understand and appreciate that for most people what I am advising above is extremely difficult, if not near impossible. Unwisely, people somehow think that they can sweet talk themselves out of the arrest. Keep in mind, the law enforcement officer interrogates suspects for a living and you do whatever you do for a living. It usually isn’t a fair interaction in that regard.

 

In my experience, I can tell you that people rarely can talk themselves out of being arrested. What happens more-often-than-not is that the person being arrested talks and talks, and ultimately creates a ton of evidence against themselves that is extremely difficult to deal with in court. It is the worst kind of self-inflicted mistake a person can make.

 

So, please, heed my warning. Don’t speak to law enforcement if you are being arrested. You are not being rude or inconsiderate; you’re being smart and prudent. In fact, it is your constitutional right to ignore law enforcement and remain silent. So please do that in the future.

 

HISTORICAL UNDERSTANDING

 

First, the technical understanding. Miranda warnings are required to protect the accused’s Fifth Amendment privilege against self-incrimination. The Fifth Amendment reads:

 

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 offence 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.

 

To understand the Fifth Amendment and the rest of the Bill of Rights, one has to understand the historical context of why the colonists demanded a Bill of Rights. After the constitutional convention, the constitution’s supporters realized that although the constitution set up our wonderful form of government, it did little to protect individual citizens from governmental abuses. Remember, the Revolutionary War had only just ended a few years before the Bill of Rights was adopted.[ii]

 

Now piecing together things a few common sources and simply being a student of our history, it seems pretty logical and practical that the colonists had suffered horribly at the hands of the Crown and its troops. It was not uncommon for British Troops to forcibly seize a colonist’s residence or farm.[iii] Remember, the colonist was a subject of the Crown and subject to the ridiculous acts of Parliament at the time. In most instances, the colonists were simple extorted and abused. These abuses led to the American Revolution.

 

After we gained our independence, the several states drafted their own proclamations of rights. The proclamations served to define what rights were owed to the citizens of the state and what obligations were delegated to the states. It was also a back-handed way to gloat and send a message back to England that it had not broken the backs of the colonies.

 

The most famous of the proclamations was George Mason’s Virginia Declaration of Rights.[iv] The Declaration of Rights was easily enacted. In Section 8 regarding criminal rights, Mason included the following phrase, “nor can he be compelled to give evidence against himself…”

 

It stands to reason that these criminal rights were demanded by the colonists from the newly formed state and federal governments. The convergence of so many similar iterations suggests that British Troops would conduct “drumhead trials” which were simply unfair to the accused by design.[v] Logically, the prohibition against self-incrimination seems to have been a redress to the troops’ treatment of the colonists.

 

MIRANDA AND CURRENT STATE OF THE LAW

 

In 1966, the Supreme Court heard and ruled on the Miranda case.[vi] For the first time, the Supreme Court concluded that to protect the accused’s Fifth Amendment privilege that the suspect had to be warned before questioning that anything he said to law enforcement would be used against him. He also had to be told that he had a right to have an attorney present and if he could not afford one, that one would be appointed free of charge. After the warnings had been provided, the accused could then knowingly, intelligently, and voluntarily waive the rights and agree to answer questions or make a statement. Any statements provided by an accused were not admissible in court unless the prosecution demonstrated that the warnings were given and that the accused knowingly, intelligently, and voluntarily waived (or gave up the enforcement of the rights). Again, this was a first of its kind in constitutional criminal jurisprudence.

 

There are parallels to evidence rules in civil court. Let me explain. In a criminal case, the caption of the case resembles something like:

 

State of Florida vs. John Doe

The Commonwealth of Pennsylvania vs. John Doe

People of the State of California vs. John Doe

The United States of America vs. John Doe

 

In each case caption, the prosecuting authority (e.g., the state, people, commonwealth, …) is essentially the plaintiff and the accused is the defendant. These are referred to as the parties. There is a nearly universal rule of evidence in both civil and criminal courts that states in some fashion whatever a party might say to anyone that is not privileged in some fashion is admissible into evidence and is not barred by the hearsay rule.[vii]

 

Ordinarily, any statement by the Defendant to the police while in custody and during questioning would be hearsay but would qualify as an admission by a party opponent by virtue of the prosecution and be admissible without further ado. The idea is that “confessions are admissible as competent evidence upon the logical principle that no one would make a voluntary admission against himself unless it were true.”[viii] We know that is not always the case since with 362 DNA exonerations to date.[ix] Nevertheless, that was the logic since the Magna Carta.

 

The Warren Court must have recognized this injustice on some visceral level because of the inherently unfair nature of the evidence rule and coercive nature of police interrogations. This coupled with the usually high credibility afforded law enforcement officers, any statement presented in court suggesting that the accused confessed would be extremely damning evidence. Nonetheless, the Warren Court sought to concoct a protective measure that would balance the need for the accused’s constitutional rights to be protected and society’s need to interrogate and prosecute criminals. In this regard, the Miranda warnings provide an extra layer of constitutional protections to only situations were the accused is in custody and subject to interrogations.

 

By “in custody” or “custodial [interrogation],” the case law, time and time again, analyzes the term “custody” from a “reasonable person” standard. Based on the totality of the circumstances, would a reasonable person believe that they were free to disregard law enforcement and go about their business? Other factors that might enter into the analysis are: did law enforcement use force, threat of force, or physical restraint? Was there coercive commands or demands made upon the suspect? Where did the conversation take place? How long was the questioning? Was the suspect told he was free to leave?[x]

 

The second prong refers to “subject to interrogations” which almost usually refers to police actively questioning the suspect. It does not mean anything a suspect might say while in contact with the police. So be careful there’s a distinction and the distinction matters. So causal conversations about the weather or a particular sports team might not be protected under Miranda.

 

HEARSAY DEFINED

 

So… aren’t these statements hearsay you might ask? And are they not inadmissible? Yes, the statements are hearsay. And no, they are admissible. Let me explain. The basic definition of the often-misunderstood hearsay rule is this – “hearsay is an out of court statement offered to prove the truth of the matter asserted.”[xi] What does that mean? That usually means that someone heard someone else say something and is now repeating the statement in court to prove the contents of the statement. Under normal circumstances for trial purposes, hearsay is inadmissible in court as evidence to prove a fact (although it may be admissible for other purposes). If the “other person” from the above explanation is a party to the action, then the statement may be offered into evidence under the same logic confessions are admissible. At that point, the statement is an “admission of a party opponent,” is admissible, and comes into evidence. This is all provided, of course, that the witness repeating the statement in court is credible, trustworthy, and believable and not somehow fabricating or misstating the statement because they have some animus, bias, or prejudice against the declarant (or person who supposedly made the statement). Those factors are usually reserved for a jury to decide whether or not they choose to believe the witness while in deliberations.

 

SO HOW DOES THAT APPLY TO ME

 

Well, many people I represent often claim to have a “eureka!” moment and tell me that the police didn’t read them their rights as some type of suggestion that the prosecution should be closed because of some type of police misconduct. Maybe people watch too much television or YouTube or whatnot, but that is not usually the case. In some rare instances, not reading a suspect his/her Miranda warning may require the trial court to suppress the statement taken in violation of the Miranda warnings, but that is not always the case. It depends largely on the situation and the specific facts. If you change the facts, then you change the answer.

 

Putting that all aside – anything you say can be offered against you if you are a party to action. If you are on the backside of the versus (vs) then what you say (text, post, comment on …) can be offered as evidence against you in a hearing or trial. And it can be devastating evidence against you.

 

So listen up: as technology evolves to make our lives easier and supposedly “better,” so does it make it easier for people to make lots of evidence against themselves for prosecutions (or to be used against them in civil cases). Putting aside such mundane things like person conversations and/or the contents of telephone calls (which can be offered against the declarant), it is not uncommon to see any of following items being used against an accused (or a defendant in a civil case), things like: emails, search results, websites visited, text messages in any form, snaps, tweets, Instagram posts, Facebook posts, on line profiles, blogs, messenger conversations, likes, comments …etc. If it comes from you (the accused) and it can be shown that you uttered, typed, asserted, or otherwise conveyed the item as a thought from you, then it can be construed as “admission” and offered against you without further ado.

 

Yes, tweets. You heard me correctly. For instance, the current president makes several damning pieces of evidence against himself daily because he simply cannot help himself. He hasn’t done himself any favors if he is ever impeached or indicted on criminal charges because every single tweet can be offered as an “admission of a party opponent.” If I were his lawyer, he wouldn’t have access to the smartphone. (But alas, I am not his attorney (and I am very thankful for that small gift in life)).

 

I often tell clients to close and/or shut down all of their social media accounts pronto after they have been arrested. Not in an effort to hide evidence, but as an attempt to foreclose any further evidence the client might make against themselves. I have represented clients who were under suspicion criminal activities think that they were “too clever by half.” Their posts or text messaged ended up spectacularly backfiring (and that isn’t a good thing). Now-a-days, if it is on social media or the internet, it could be used against you. Period.

 

Think about this scenario for a second if you will. You have been arrested and charged with stealing an acquaintance’s automobile. You assert you borrowed it with his permission; he claims you took it without his permission. After you bond out of the jail, you decide to text the owner. “Hey, I am sorry I took your car the other day. I thought we were cool.” Sounds rather innocuous, right? Wrong. In the above scenario, the texter has voluntarily admitted to taking the car (which is one of the elements that the prosecution has to prove). At this point, it is difficult to defend the case from a trial perspective. (If the accused was looking a plea bargain, then it might not matter in the end, but why create further evidence against yourself?)

 

Social media and the criminal justice system simply do not mix. If you have been arrested or are under investigation, your best course of action is to simply close all your accounts until your case has been resolved or the investigation closed. Make no mistake, I understand and appreciate that what I am advocating is difficult and sucks, but I tend the believe that the your freedom is far more important that texting people who are not going to do your prison time for you.

 

And because you are not “in custody” and “subject to police interrogation,” the Miranda case DOES NOT APPLY. At that point, you are on your own.

 

So the best advice I can give everyone (criminal defendant or not) is this: read and re-read all emails, texts, posts … social media whatever before you send it and think, “Is this something that I want to see produced as evidence against me in a court of law?” If the answer is a resounding “NO,” then hit the delete button and not post or send or whatever because you can’t undo it and admissions in court are extremely difficult to deal with as evidence.

 

Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer

 

Contact Anthony Candela at (813) 417-3645 or visit on the web www.candelalawfirm.com for a review of your case.

 

The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.

 

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article.

 

 

 

[i] 384 U. S. 436, 471 (1966)

 

[ii] https://www.history.com/topics/united-states-constitution/bill-of-rights

 

[iii] https://en.wikipedia.org/wiki/Quartering_Acts

 

[iv] https://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

 

[v] https://en.wikipedia.org/wiki/Drumhead_court-martial Although the term may have originated far earlier, this link outlines the basics.

 

[vi] https://www.oyez.org/cases/1965/759

 

[vii] Federal Rule of Evidence 801(2) treats an admission of a party opponent as a non-hearsay statement (which means that the statement would be hearsay “but for” this rule that makes it otherwise). Florida treats the admission of a party opponent as a “hearsay exception to the hearsay rule.” See §803(18), Fla. Stat.

 

[viii] The Law of Confessions as Affected by Supreme Court Decisions, 27 Fordham L. Rev. 396 (1958). Available at: http://ir.lawnet.fordham.edu/flr/vol27/iss3/6 page 397

 

[ix] https://www.innocenceproject.org/dna-exonerations-in-the-united-states/

 

[x] For good explanation of police-citizen encounters, see Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).

 

[xi] See §90.801, Fla. Stat.

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