Posts Tagged ‘Case Law’
New Orleans Child Pornography Attorney
Elizabeth B. Carpenter Law is uniquely qualified to defend clients who have been accused of a child pornography offense in New Orleans area. We have represented countless clients in child pornography cases in Louisiana. Some of the specific types of cases we address include the possession, production, possession, distribution or sale of child pornography in New Orleans. Our knowledge of the law and experience in child pornography defense gives us the skill you need to effectively challenge the allegations made against you.
Court Says Child Porn Victims Can Get Restitution
Child pornography victims can recover money from people convicted of viewing their abuse without having to show a link between the crime and their injuries, a federal appeals court ruled Monday.
The decision conflicts with rulings by several other federal circuits, possibly setting the stage for a Supreme Court challenge.
The 5th U.S. Circuit Court of Appeals ruled that a woman, identified as “Amy” in court documents, was entitled to restitution from Texas resident Doyle Randall Paroline and New Orleans resident Michael Wright, both of whom pleaded guilty in separate cases to possessing child pornography that included images of Amy.
Amy sought more than $3.3 million from Paroline to cover the cost of her lost income, attorneys’ fees and psychological care. A federal judge rejected her request.
Amy also sought more than $3.3 million from Wright, who had images of Amy and at least 20 other identifiable children stored on his computer. A federal judge ruled Wright owed Amy more than $500,000.
Wright argued he didn’t owe Amy any restitution because he didn’t obtain the images until years after she was abused. He also said there wasn’t any evidence that she knew he personally viewed the images.
Amy, now her early 20s and living in Pennsylvania, was a child when her uncle sexually abused her and widely circulated images of the abuse, according to court records. The National Center for Missing and Exploited Children said it has found at least 35,000 images of Amy’s abuse in more than 3,200 child pornography cases since 1998.
In at least 174 cases, Amy has been awarded restitution in amounts ranging from $100 to more than $3.5 million. James Marsh, one of her attorneys, said in January that she had collected more than $1.5 million.
Nine of the 15 judges joined in the majority opinion written by Judge Emilio Garza. The opinion said a federal statute dictates that a child pornography victim be awarded restitution for the full amount of their losses in each defendant’s case.
“Fears over excessive punishment are misplaced,” Garza wrote. “… Ultimately, while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography.”
“No other circuit that has addressed this issue has adopted such a one size fits all rule,” he wrote. “Other circuits have given the district courts discretion to assess the amount of the restitution the offender is ordered to pay.”
Stanley Schneider, one of Paroline’s attorneys, said they will ask the Supreme Court to review the ruling.
If you need a Child Pornography Defense Attorney in New Orleans, call attorney Elizabeth B. Carpenter at 504-599-5955 or email her to schedule a consultation. Early intervention by an experienced sex crime defense attorney can make a tremendous difference in your case. We are here to help you, not judge you.
By: Elizabeth B Carpenter
Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.
The following cases are being argued before the U.S. Supreme Court this week:
BAILEY V. UNITED STATES
Can police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
CHAIDEZ V. UNITED STATES
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
FLORIDA V. JARDINES
Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
FLORIDA V. HARRIS
Is an alert by a well-trained narcotics detection dog certified to detect illegal contraband insufficient to establish probable cause for the search of a vehicle?
Criminal Defense Attorney New Orleans
Louisiana sex law violates offenders’ rights, federal judge rules
By: Associated Press
A Louisiana law violates the constitutional rights of people who were required to register as sex offenders after they were convicted of soliciting oral or anal sex for money, a federal judge ruled Thursday. U.S. District Judge Martin Feldman said state lawmakers had no “rational basis” for requiring people to register as sex offenders if they were convicted of a “crime against nature by solicitation.”
Feldman sided with nine anonymous plaintiffs who sued last year, saying they wouldn’t have had to register as sex offenders if instead they had been convicted of soliciting sex for money under the state prostitution law.
Civil rights attorneys who filed the suit against Louisiana Attorney General James “Buddy” Caldwell and other state officials claim the law is unconstitutional and discriminatory, unfairly condemning sex acts traditionally associated with homosexuality.
Feldman said the plaintiffs proved they have been deprived of their equal protection rights under the Fourteenth Amendment.
“The defendants fail to credibly serve up even one unique legitimating governmental interest that can rationally explain the registration requirement imposed on those convicted of Crime Against Nature by Solicitation,” Feldman wrote. “The Court is left with no other conclusion but that the relationship between the classification is so shallow as to render the distinction wholly arbitrary.”
Feldman gave the plaintiffs five days to submit a proposed judgment consistent with his decision. Plaintiffs’ attorney Alexis Agathocleous said he and his colleagues were still reviewing the ruling and weighing their options but would, at a minimum, ask for the names of the nine anonymous plaintiffs to be removed from the sex offender registry.
“We will work with the court to sort out the precise details of the judgment in this case,” said Agathocleous, an attorney for the Center for Constitutional Rights in New York.
Agathocleous said the ruling represents “powerful vindication” for the plaintiffs and a rebuke of a statute “borne of age-old animus.”
Feldman said the issue before him “is not about approval or disapproval of sexual beliefs or mores.”
“It is about the mandate of equality that is enshrined in the Constitution,” he wrote.
A spokeswoman for Caldwell’s office said she couldn’t immediately comment on the ruling.
The state Legislature amended the 200-year-old law last year so that anyone convicted of a “crime against nature by solicitation” no longer will be required to register as a sex offender. But the change didn’t apply to roughly 400 people who already had been convicted of the crime and were registered sex offenders.
The state argued the plaintiffs didn’t have a constitutionally protected right to privacy after being convicted of engaging in sex acts for money.
Gov. Bobby Jindal originally was named as a defendant in the suit, but the claims against him were dismissed last year.
Another New York Times Piece Regarding Prosecutorial Misconduct in the New Orleans DA Office: In Re Smith v. Cain
New Orleans Criminal Defense Attorney
Last week, I covered the current U.S. Supreme Court Case, Smith v. Cain. I think that it is very important for Louisiana residents to know and understand what has been going on for YEARS in the Orleans Parish DA office and how such misconduct is leading to wrongful convictions. Here are some links to refresh your memory.
The Big SleazyBy ANDREW ROSENTHAL
For the third time in 16 years, the Supreme Court is taking up the question of why prosecutors in New Orleans seem to have so much trouble with the law. Smith v. Cain, a case heard last week, outlines truly shocking misdeeds going back decades. And an article in The Times-Picayune makes clear that problems continue.
Take for example this account of District Attorney Leon Cannizzaro’s ignorance regarding an essential rule of law:
Last week, Cannizzaro insisted his office acted properly when it waited until the middle of a trial to tell a defense attorney about its deal with the victim and lone eyewitness in a December 2010 shooting in eastern New Orleans. Cannizzaro told The Times-Picayune his office didn’t initially reveal the deal, which was inked in August, because Smith’s lawyer never asked. “The defense attorney has to request it, and if he doesn’t, we’re not obligated to give it to him,” Cannizzaro said last week.
Hey, I saw “My Cousin Vinny.” That’s just wrong.
Beginning with the 1963 case Brady v. Maryland, the Supreme Court has made clear that a prosecutor has a duty to disclose evidence favorable to the defendant—even if the defendant doesn’t ask for it—if the evidence is likely to change the result of the legal proceeding.
Lest you be shocked by this tiny little gap in Mr. Cannizzaro’s knowledge, consider his predecessor, Harry Connick, who boasted that he “stopped reading law books” and “looking at opinions” after he was elected district attorney in 1974. That apparently includes Supreme Court rulings. After the Court’s 1995 decision in Kyles v. Whitley, featuring what Justice John Paul Stevens called “many instances” of the district attorney’s office’s “failure to disclose exculpatory evidence,” Mr. Connick testified in court that he made no changes in his office’s approach to meeting Brady requirements.
If a prosecutor so blatantly fails to do his job, surely there is swift and powerful punishment. Actually, no. Lincoln Caplan, one of the board’s legal writers, explains below:
Mr. Connick’s testimony came in Connick v. Thompson, which the court decided last March. In a bitterly divided 5-4 vote, the court overturned a $14 million jury verdict against the district attorney’s office, reached because the office withheld exculpatory evidence from John Thompson and, as a result, sent him to prison for 18 years, 14 on death row. That disposed of one the handful of ways it was possible to deter prosecutorial misconduct.
A group of Yale Law School students recently published a report on “The Myth of Prosecutorial Accountability After Connick v. Thompson,” which is unsettling but well worth reading.
In the Connick case, Justice Clarence Thomas wrote that “[a]n attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”
But that’s not really so. As the report relates, “prosecutors have rarely been subjected to disciplinary action by state bar authorities,” even though “state bar disciplinary procedures stand as one of the few – and perhaps the only – means of holding prosecutors accountable for gross misconduct.”
For instance, although the lead prosecutor in Smith v. Cain was sanctioned for misconduct by the Louisiana Supreme Court in 2005 (in another case), the court suspended his sentence after observing that this was “a case of first impression in the State of Louisiana” and that the court had never before “been confronted with the issue of disciplining a prosecutor for failing to disclose” Brady material.
Well, that’s a novel idea. If you’re the first to be sanctioned for an offense, you don’t get punished for it.
Prosecutorial Misconduct New Orleans DA Office vs. Brady v. Maryland
NEW ORLEANS CRIMINAL DEFENSE ATTORNEY
By: Law Office of Elizabeth B. Carpenter – Contact
John Thompson, an innocent man, served 18 years in Louisiana prisons including 14 years on death row due to prosecutorial misconduct before he was exonerated in 2003.
He sued the Orleans Parish Attorney’s Office in civil court and won a 14 million dollar settlement, but the decision was eventually overturned by the U.S. Supreme Court stating a single case of prosecutorial misconduct at the Orleans Parish district attorney’s office was not sufficient proof that the office had failed to properly train its prosecutors.
In my opinion, this ruling in nonsensical because it conflicts with Brady v. Maryland, a 1963 landmark Supreme Court case in which our nations highest court ruled that prosecutors have an affirmative duty to disclose all exculpatory evidence to the accused.
Subsequent case law expanded Brady‘s obligations to law enforcement officers and defined exculpatory evidence as any evidence that could be favorable to the accused. This may include:
- Evidence relevant to guilt or innocence.
- Evidence relevant to the appropriate punishment.
- Evidence relevant to a witness’ credibility, including evidence the defense might use at trial to impeach a witness. Giglio v. U.S., (S. Ct. 1972).
Yesterday, another case ( Smith vs. Cain) was argued in front of the Supreme Court with the same issue at bar. The defendant’s name is Juan Smith, New Orleans murder convict who says former DA Harry Connick’s Sr. administration kept secret evidence that would have helped him at trial. The lone eyewitness to a quintuple murder on North Roman Street picked Smith out of a photo lineup and reportedly said, “I’ll never forget Juan’s face, never.” Smith’s attorneys weren’t told what that witness had reportedly said three months before then, that he was “too scared to look at anybody.” Smith thinks a jury may have acquitted him if prosecutors had disclosed the eyewitness’ change of story.
The U.S. Supreme Court must decide “Whether the state courts in this case erred in concluding that any violation of the defendant’s constitutional rights at his criminal trial was harmless.”
I am surprised the high Court granted Certiorari because this case essentially undercuts the majority’s argument that it was ruling against Thompson in part because he couldn’t demonstrate a pattern of abuse. Furthermore, Thompson’s case was heard almost less than a year ago.
If you would like to read a recap of yesterday’s argument in Smith v. Cain click here — it is an interesting read
While we wait for our honorable highest Court to decide this case, I would like to thank my colleagues at The Capital Post Conviction Project of Louisiana. Their hard work is inspiring. I also pray for a day when the Orleans DA Office develops a reputation for integrity.
Thompson spoke with Innocence Project staff and students in June 2011 about his case and the issue of prosecutorial misconduct. Listen to his words in the above video!
Law Office of Elizabeth B Carpenter, Esq. — New Orleans Criminal Defense
NEW ORLEANS CRIMINAL DEFENSE BLOG
Lyle Denniston Reporter
Posted Tue, November 8th, 2011 4:51 pm
Argument recap: Disaster at the lectern
There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain (docket 10-8145).
The case is the second before the Court in the past year to raise deep questions about the way the Orleans Parish office has prosecuted criminal cases, over a good many years.. And, near the end of Andrieu’s troubled argument, she was reminded of that history by Justice Sonia Sotomayor, who seemed to be wondering whether the D.A.’s staff there would ever learn. In both this Term’s case and last, the issue was whether the prosecutors had failed in their constitutional duty, under Brady v. Maryland (1963), to turn over evidence that could help lawyers defend their clients.
One might have some sympathy for the task facing Andrieu, not only because of that history, but also because the argument that unfolded before she even got up to speak was disciplined, legally and factually, and offered the Court a vivid portrayal of exactly the problem that these cases pose.
Kannon K. Shanmugam, a talented advocate with a good command of even the finest detail of the evidence, had found a totally receptive Court. He faced only a handful of tough questions. With the constitutional principles of the Brady precedent clear, the Court was attentive to even the nuances of the evidence in the prosecution of Juan Smith for five murders in New Orleans in 1995. The Court even showed a fascination with the way “hip-hop” hairdos might be worn, and why someone in that cultural element in the 1990s would have their teeth adorned with a gold laminate (the assailants supposedly had both trimmed-down hairlines and gold-appearing teeth). But the Justices were especially keen to learn about the evidence that Shanmugam said was withheld from Smith’s counsel.
Smith had been convicted, his lawyer told the Justices, “solely on the testimony of a single eyewitness. Unbeknownst to the defense, however, that eyewitness had told the police on multiple occasions that he could not identify any of the perpetrators or as he put it, that he would not know them if he saw them.” In fact, he added, the D.A.’s office “produced almost no relevant evidence to the defense before [the] trial.” Smith, Shanmugam said, is thus entitled to a new trial, and then he launched into a point-by-point description of what the defense lawyers did not know at the time of the trial, and thus had no chance to use it for his defense.
That key witness, a man named Larry Boatner, who was injured in the assault that left five others dead in a house in New Orleans, confidently identified Smith as a killer at the trial. The defense surely would have countered that, Shanmugam said, if it had known what he had said repeatedly to police before he took the stand.
Assistant prosecutor Andrieu then took her turn, choosing to begin by trying to rehabilitate Larry Boatner as a witness. She said that Boatner had identified Juan Smith “after having searched the faces of 72 individuals who were presented to him in photo line-ups, one after the other.” She soon ran into blunt questioning by Justice Stephen G. Breyer, who spelled out what was on police notes of what Boatner had told them — notes that Smith’s defense lawyers never saw before or during the trial.
Andrieu then sought to persuade the Court that what Boatner had said before the trial was not “material” to the case. (The Brady precedent requires prosecutors to turn over only evidence that would be “material” to the case — that is, evidence that bore significantly on guilt or innocence.) It would be Andrieu’s undoing. Justice Ruth Bader Ginsburg, who would gradually lose patience as she questioned the prosecutor, wondered how inconsistent statements by the only eyewitness to the killings could not be “material.”
She acknowledged Chief Justice John G. Roberts, Jr.’s suggestion that the defense would have liked to have known that Boatner at one point told police that he could not identify any of the attackers, but then Andrieu insisted that this was not “material.” Ginsburg then again criticized the prosecutor’s view of what was “material,” and Justice Antonin Scalia joined in to say that the trial did not depend solely on Boatner’s testimony but, in fact, his was the only evidence against Smith. She insisted there was more.
Justice Anthony M. Kennedy, voicing his agreement with Ginsburg’s comment, said “I just can’t believe” that a judge would have found what Boatner had said about not being able to identify the killers not to have a direct bearing on the case.
Andrieu conceded to Justice Samuel A. Alito, Jr., that any prosecutor should have asked the police investigators, before pursuing the case to trial, whether they had in their possession any statements by the witnesses who were to be called to the stand. But she said that, under Louisiana law, the defense has no right to such statements. While she acknowledged that the Brady precedent required that the defense get to see such statements, if they were “material,” Andrieu seemed to be saying that the harm to Smith had been alleviated because the trial judge got to see them, in the privacy of chambers.
The more Andrieu talked, the more the Justices brought up, over and over again, Boatner’s statements to police that Smith’s lawyers never saw. Justice Kennedy asked her, point-blank, whether the prosecutors had ever conceded in the case that they had committed a violation of the Brady requirement. Andrieu said no, but added that “a prudent prosecutor” would have handed it over to defense counsel.
The aggressive exchanges were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?”
Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument that these statements of Larry Boatner are not material.”
It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?” The prosecutor again tried, astonishingly, to make one more effort to rehabilitate witness Boatner’s credibility.
At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.
But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand. She said that “today we turn all of this over….It should have been turned over. I guess what I was addressing or attempting to address was the materiality prong of Brady.”
The Court is expected to decide the case sometime next year.
Supreme Court seems ready to overturn conviction in New Orleans murder case
WASHINGTON — The U.S. Supreme Court seems ready to overturn a Louisiana death row inmate’s conviction because New Orleans prosecutors did not give defense lawyers statements that cast doubt on the murderer’s identity.
Justices repeatedly pounded a lawyer from the New Orleans district attorney’s office with questions Tuesday about why they didn’t turn the witness statements over to Juan Smith’s lawyers. Two justices, Elena Kagan and Antonin Scalia, finally told the prosecutor’s representative that their office should just admit their error.
Smith was convicted of killing five people at a 1995 party. Those convictions were later used to get him a death sentence in a separate case.
But the only eyewitness to the 1995 murders gave inconsistent statements about whether he could identify the killers. Those statements were not shared with Smith’s lawyers.
U.S. Supreme Court approached New Orleans case with blinders: Jarvis DeBerry
By Jarvis DeBerry Times Picayune and Nola.com
When the U.S. Supreme Court yanked a $14 million settlement away from John Thompson in March, it said that a single case of prosecutorial misconduct at the Orleans Parish district attorney’s office was not sufficient proof that the office had failed to properly train its prosecutors. Even those rooting against Thompson must have been astonished to hear the Supreme Court’s rationale for turning him down. Former District Attorney Harry Connick developed quite the reputation when he was in office for keeping defense lawyers in the dark about evidence that might help acquit their clients.
Yet the majority of justices on the court approached Thompson’s case with blinders. That’s the only way to conclude that what happened to Thompson was a single case of misconduct.
Writing for a 5-4 majority, Justice Clarence Thomas said that unlike a police department — which might give its employees all the training they ever get — a district attorney’s office hires those who’ve already finished law school and passed the bar. Such employees are expected to know the Constitution and its requirements going in. For that reason, the Supreme Court made it harder for those in Thompson’s position to sue a district attorney’s office for the misconduct of its prosecutors.
Thompson spent 14 years on death row and came close to meeting his end, but the agency whose employees broke the rules to send him to his death got off without being punished at all.
Justice Ruth Bader Ginsburg scoffed at the idea that Thompson’s case was an isolated example of the Harry Connick administration’s failure to turn over so-called Brady evidence, that which might help the accused in his or her defense. “What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct,” Ginsburg wrote for the four dissenting justices. “Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility.”
Today the Supreme Court will hear the case of Juan Smith, another New Orleans murder convict who says Connick’s administration kept secret evidence that would have helped him at trial. The lone eyewitness to a quintuple murder on North Roman Street picked Smith out of a photo lineup and reportedly said, “I’ll never forget Juan’s face, never.” Smith’s attorneys weren’t told what that witness had reportedly said three months before then, that he was “too scared to look at anybody.” Smith thinks a jury may have acquitted him if prosecutors had disclosed the eyewitness’ change of story.
It’s remarkable that the Supreme Court is hearing Smith, given that his case essentially undercuts the majority’s argument that it was ruling against Thompson in part because he couldn’t demonstrate a pattern of abuse.
Beyond that, the Orleans Parish public defender’s office says that the district attorney’s office has wrongfully won 28 convictions after ignoring its requirements to divulge exculpatory evidence. According to the Innocence Network, which filed a brief in support of Thompson’s appeal, 10 convicted felons were later exonerated when it was shown that prosecutors played dirty. The district attorney’s office says 13 convictions were ill gotten with Brady violations.
It doesn’t really matter if it’s 28, 13 or 10. What matters is that it’s happened more than once, even more than twice. Yet, a majority of the Supreme Court ruled against Thompson using the argument that the single instance of misconduct he alleged was not sufficient to override the immunity against lawsuits that prosecutors are typically given.
The number and names of the justices who agree to hear a case are not disclosed, but it takes the approval from at least four of them. Could it be that the four justices who disagreed with the majority on Thompson are the very ones who made it possible for Smith’s lawyers to make his case? Is agreeing to hear Smith another way of expressing their lingering dissent over Thompson?
Not that it can do Thompson any good. That case is settled, even if the case today demonstrates how wrong that decision was.
Frequently Asked Questions About Police Interrogations — New Orleans Criminal Defense Attorney
If you or a loved one are facing criminal charges, contact Elizabeth B. Carpenter — New Orleans Criminal Attorney
The police can stop a person when they have good faith belief that the person was involved in a crime – this is often referred to as a “Terry Stop.” However, under the Fifth Amendment right against self-incrimination, a person does not have to answer any questions. In fact, a person should not answer any questions during a “Terry Stop.” The law only requires a person to give his name, date of birth, address and other information to establish identity if requested. Therefore, if questioned about a crime when walking on a street, do not utter any words accept your name. Respectfully, inform the officer that you are exercising your Fifth Amendment Constitutional Rights.
In what circumstances do the police need a warrant to make an arrest?
If the police have “probable cause,” a reasonable suspicion that a person has been committed a crime, it is unnecessary for them to obtain a warrant before arresting someone. However, police must obtain a warrant when arresting a person in his home if it is for a non-serious offense and there is no belief that the person will destroy evidence. The arrest warrant must provide evidence that a crime has been committed, that the person names on the warrant committed the crime and the warrant must comply with all rules of court.
Do police have to give Miranda warnings when making an arrest?
This is a concept that is often misunderstood by clients. No, the police do not need to give the Miranda warnings when making an arrest. Miranda warnings are required only when the police interrogate a person after an arrest. Miranda warnings are also not required when the police interrogate someone prior to an arrest however, everything that you say to the police at any point in time can be used against you. Police may also have you sign a waiver of rights form rather than verbalize your Miranda Rights. Pay attention to what you sign!
Will my case be dismissed since the police questioned and arrested me without giving a Miranda warning?
No, the prosecutor can still bring charges against you even if the police failed to give Miranda warnings before conducting a police interrogation. The failure to Mirandize a suspect after arrest and prior to interrogation prevents the prosecutors from being able to use any evidence obtained via the interrogation against the suspect at trial. But the prosecutor can use evidence obtained via another means to secure a conviction.
If I agree to police questioning, can I later decide not to answer questions?
Yes, Miranda warnings give a person the right to stop a police interrogation at any time even if he has already waived his right to remain silent and answered some questions. A person can exercise this right by refusing to answer any more questions or requesting an attorney. Once a person avers Miranda rights, the police must discontinue the interrogation.
What tactics can the police use when questioning a suspect?
Law enforcement is forbidden from using physical or psychological coercion when conducting police interrogations. However (I wish that everyone understood this) the police can lie, trick and employ other types of non-coercive methods to obtain a confession from a suspect. Police are trained in interrogation techniques. They are allowed to make false promises and use scare tactics. They are allowed to tell you that they have the power to decide how severely you will be prosecuted. This is absolutely not true!
Do the police have the right to take a bodily sample without permission?
Generally, No. Law enforcement must obtain a search warrant. However, the Fifth Amendment right against self-incrimination applies to communication and does not prohibit the police from collecting physical bodily evidence, i.e. blood samples, hair samples. I would refuse a bodily sample based on “no search warrant.”
The best advice I can give every client is Do Not Speak To The Police!
If you’ve been arrested, contacted by law enforcement, or if you are being accused of a crime but no charges have been filed yet, you need to speak with a criminal defense attorney as soon as possible! This is the single most important time for a criminal attorney to get involved. Many legal rights have time-specific deadlines and legal matters will become harder to manage successfully the longer they are left unattended.