Invoking the right to counsel

[Mor]

Does anyone know if the police can interrogating a suspect after he invoked his right for counsel? I always assumed that anything said after that point can't be used in anyway ( inadmissible in court or leads to fruit from poisons tree)

 

However recently a friend suggested that the idea behind this is to avoid self incrimination, and thus you can keep interrogating the suspect and use that info as long as its not about him. So for example if the suspect said that he murdered someone, you can never use in anyway against him, but you can bring it up in court to eliminate him as suspect in another murder that happened at the same.

 

ny truth to that?

[Monte Carlo]

Are we in America?

[Tale]

My understanding is that the police have to stop interrogating when the suspect says that he wants his lawyer. But if the suspect talks to them after that it can be construed as him waiving his rights and the interrogation may resume.
 
Interrogating without the prompt from the suspect, for any reason, is a violation of Miranda rights.
 
This seems upheld by several sources I can find online. Including this one.
 
 

Once an in-custody suspect has asserted his Fifth Amendment right to counsel, police are prohibited from all further interrogation efforts on all crimes unless the suspect initiates the communication concerning his criminal involvement or counsel has been made available to the suspect.

http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=171&issue_id=122003

[Mor]

@Monte Carlo. For the sake of the argument lets assume that we are. This way when you are bored, you can pole holes in all those US tv shows

 

@Tale. iirc they have to mirandize him again, regardless here its about police intentionally violating his rights, knowing all to well that they wouldn't be able to use any of it against him, with purpose of gaining information about someone/something else.

[Tale]

@Tale. iirc they have to mirandize him again, regardless here its about police intentionally violating his rights, knowing all to well that they wouldn't be able to use any of it against him, with purpose of gaining information about someone/something else.

They are rights of due process, not a protection against self-incrimination.

[Nonek]

When it has been clearly stated that ones words can and will be used against them then the accused is assumed to have due warning agaisnt self incrimination, however sometimes the police can worm around the edges of this through seeming everyday conversation and such. This is where potential entrapment can be argued, which is actually helped if the accused is of lesser intelligence (as most criminals are,) but if one is arrested the golden rules is always say nothing until one has legal representation.

[Gromnir]

am possible misunderstanding mor. nevertheless general rule is that only the victim o' the inappropriate custodial interrogation has standing to raise spectre o' exclusion. if the yutz blabs about third parties, the third party cannot raise. keep in mind that the exclusion by its very nature is allowing a guilty person to escape justice-- most countries don't have exclusion. exclusion is a deterrent against police excess. therefore, exclusion is very narrowly tailored. 

 

also, depending on specifics o' the hypo, statements made by a defendant wherein his miranda rights were violated may still be used to impeach the defendant's testimony. example: bob asks for an attorney but police ignore and keep interrogating. bob then admits that he killed viki. the admission cannot be used to show bob's guilt, however, if bob gets on stand and claims that he didn't kill viki, his admission can be used to impeach his testimony.

 

am not sure if this is helpful.

 

HA! Good Fun!

[Mor]

depending on specifics o' the hypo, statements made by a defendant wherein his miranda rights were violated may still be used to impeach the defendant's testimony. example: bob asks for an attorney but police ignore and keep interrogating. bob then admits that he killed viki. the admission cannot be used to show bob's guilt, however, if bob gets on stand and claims that he didn't kill viki, his admission can be used to impeach his testimony.

So my friend was right, interesting. Edited July 25, 2014 by Mor

[Gromnir]

keep in mind that our impeachment example is more of a law school or bar exam hypothetical. government can't impeach your testimony if you do not testify. real criminal trials is not like tv with surprise witnesses and defendants collapsing on the stand. real trial is, with negligible exceptions, very boring and tedious.  our bob would almost never take the stand... and even if he did, he would not offer testimony on direct that could be impeached as we suggest. 

 

HA! Good Fun!

[Amentep]

Even knowing all of that about real-trials vs TV-trials, I still watch re-runs of Perry Mason. 

[Gromnir]

hey, we has tuned in to watch law and order, if only 'cause virtual all the assistant da looked like models... which is Far different from reality.

 

HA! Good Fun!

[AGX-17]

Does anyone know if the police can interrogating a suspect after he invoked his right for counsel? I always assumed that anything said after that point can't be used in anyway ( inadmissible in court or leads to fruit from poisons tree)

 

However recently a friend suggested that the idea behind this is to avoid self incrimination, and thus you can keep interrogating the suspect and use that info as long as its not about him. So for example if the suspect said that he murdered someone, you can never use in anyway against him, but you can bring it up in court to eliminate him as suspect in another murder that happened at the same.

 

ny truth to that?

I don't know what ostensible nation-state you live in so there is no answer. I, for one, live in GOD BLESS AMERICA and my cousin is a lawyer so FREE (non-public defender) REPRESENTATION HAWHAWHAW. Rest of you schlubs are on your own.

Edited July 26, 2014 by AGX-17

[Walsingham]

Again, not sure if I've understood the question, but my point here would be:

 

Police in US and UK have to read your rights - in the US 'mirandize' - before what you say is admissible in court. However, if you speak after you have been mirandized that is your problem. In the book 'Homicide' by the guy who wrote The Wire they go on at length about the shenanigans used by the police to get people to talk before a lawyer shows up.

 

To summarise the points in 'Homicide' the best way to beat any police investigation is to say absolutely nothing other than that you want a lawyer. When you get one say nothing at all. But most suspects have in their mind the notion that all the unpleasantness can go away and they'll be sitting back on their couch in comfort if they can convince the cops they are innocent, so they will start talking. iirc this has been raised by campaigners as a loophole, and it was suggested that anything you say without a lawyer should be inadmissiable. But this would bork hundreds of thousands of successful cases per year.

 

Like Gromnir says, this is about providing some sort of protection against police abuse. It is not about protecting you from yourself.

 

Also don't forget that at least in the USA you have hundreds of thousands of crimes committed each year. The really bad ones like murder and rape are hard to investigate because witnesses either don't exist, or have problems with credibility. Although scientific evidence has come a long way in the last twenty years it's till more efficient and sometimes more effective to have a person say they did something. By which I mean try to remember that a balance is needed between the rights of the potentially innocent suspect, and the rights of the victim.

[Monte Carlo]

You can't really compare the two systems.

 

In the UK the police want to know why you don't want a lawyer and will actively encourage you to ask for one. They don't want what are called s.76 or s.78 PACE issues at trial (validity of a confession or probity issues around how the evidence was obtained).

[Walsingham]

You can't really compare the two systems.

 

In the UK the police want to know why you don't want a lawyer and will actively encourage you to ask for one. They don't want what are called s.76 or s.78 PACE issues at trial (validity of a confession or probity issues around how the evidence was obtained).

 

So is that due to legal instruction, or is it just practical experience?

[Nepenthe]

keep in mind that our impeachment example is more of a law school or bar exam hypothetical. government can't impeach your testimony if you do not testify. real criminal trials is not like tv with surprise witnesses and defendants collapsing on the stand. real trial is, with negligible exceptions, very boring and tedious.  our bob would almost never take the stand... and even if he did, he would not offer testimony on direct that could be impeached as we suggest. 

 

HA! Good Fun!

 

I see a lot of surprise witnesses in smaller cases.Less so defendants collapsing on the stand, but I've seen people walk into holes they should've seen coming.

[Monte Carlo]

 

You can't really compare the two systems.

 

In the UK the police want to know why you don't want a lawyer and will actively encourage you to ask for one. They don't want what are called s.76 or s.78 PACE issues at trial (validity of a confession or probity issues around how the evidence was obtained).

 

So is that due to legal instruction, or is it just practical experience?

 

 

Both.

 

Edit - the right to silence is now conditional in UK law - if there are extenuating circumstances and you refuse to account for them [in interview] then a trial judge can draw the jury's attention to that silence if the accused comes up with a miracle defence at court.

 

It's in both sides interest to have a solicitor present. All interviews are recorded, but with a solicitor present there can be no doubt that the defendant knew the consequences (s76) and the interview was run properly (s78). Of course, lots of suspects choose not to comment, but at least they know what that means for them if they've had confidential access to a solicitor.

Edited July 28, 2014 by Monte Carlo

[Walsingham]

Interesting.

 

I'm being very parochial here, but I choose to see this in the same way I see so many things comparing US and UK.

 

In the US they have 'hard' principles and laws guaranteed by the Supreme Court that everyone tries to wriggle around. In the UK we have virtually no hard principles - and are sometimes subject to extreme treatment - but are often better off by virtue of a weird cultural bias.

[Monte Carlo]

^ it's not parochial, it's simply the difference between Napoleonic Code and Common Law principles. We have the latter, amended by Stated Cases.

 

The Americans rejected everything British, even our spelling. The radicals of choice back then were the French - so they co-opted their legal system which is inquisitorial and based on Statute. Thus district attorneys (investigating magistrates in Europe).

[Nepenthe]

^ it's not parochial, it's simply the difference between Napoleonic Code and Common Law principles. We have the latter, amended by Stated Cases.

 

The Americans rejected everything British, even our spelling. The radicals of choice back then were the French - so they co-opted their legal system which is inquisitorial and based on Statute. Thus district attorneys (investigating magistrates in Europe).

This is the biggest load of bollocks I've read in a while.

[Monte Carlo]

Would you care to explain? It happens to be completely true. Do you honestly think continental European and English common law is similar? Do you not think US law owes more to the European tradition than the English equivalent?

 

How unusually rude.

 

Edit - in short, English law tells you what you can't do. European law tells you what you can.

 

Why do you think we've struggled with ECHR?

Edited July 28, 2014 by Monte Carlo

[Enoch]

The only U.S. state that explicitly based its legal system on the continental model is Louisiana. 

 

Apart from the core principles of separation of powers and a written constitution, the growth of statutory law in the U.S. wasn't an outright rejection of the English model or an adoption of the continental one, it was a slow evolution over time.  Legislatures decided bit-by-bit that they didn't like how the common-law courts were handling things, and instead wrote statutes that they thought better reflected how the people wanted their state/nation to be governed.  Eventually, it made sense for all these statutes to be tied together into a unified code on a particular subject.  But courts still make rulings based on common-law precedents-- a fair amount of American contract law and property law, for example, still rests on principles that were first litigated in English courts. 

Edited July 28, 2014 by Enoch

[Walsingham]

Would you care to explain? It happens to be completely true. Do you honestly think continental European and English common law is similar? Do you not think US law owes more to the European tradition than the English equivalent?

 

How unusually rude.

 

Edit - in short, English law tells you what you can't do. European law tells you what you can.

 

Why do you think we've struggled with ECHR?

 

 I have to concur with Monte here. I actually watched some debates in the Lords on this exact point.

 

EDIT:

 

While I have to concede to Enoch's superior and measured expression of history, I do question whether the actual live practice of law isn't codified rather than interpretive.

Edited July 28, 2014 by Walsingham

[Nepenthe]

What Enoch said + The U.S., apart from the fusion legal system laboratory that is Louisiana, most certainly isn't a "continental" legal system. Neither is the legal process inquisitorial, district attorneys are not officers of the court.

 

It's funny, a lot of continentals have issues with the ECJ and it's activism, which is a lot more reminiscent of a common law type system.

 

That said, I'm happiest reading Lord Denning at his prime, that's how you write a legal opinion.

 

[Walsingham]

What Enoch said + The U.S., apart from the fusion legal system laboratory that is Louisiana, most certainly isn't a "continental" legal system. Neither is the legal process inquisitorial, district attorneys are not officers of the court.

 

It's funny, a lot of continentals have issues with the ECJ and it's activism, which is a lot more reminiscent of a common law type system.

 

That said, I'm happiest reading Lord Denning at his prime, that's how you write a legal opinion.

 

Quotation please.