Posted on Jul 17, 2009

The Miranda warning is something we are all familiar with from watching police dramas.  Once the suspect is "Mirandized" and says he or she wishes to have an attorney present, questioning must cease.  However, on July 9, the New Jersey Appellate Court held that the police may resume questioning of a suspect who has invoked Miranda under certain circumstances.

In State v. Wessells , the defendant was arrested on a traffic warrant and was questioned by the police about a multiple homicide. At some point in the interview, the defendant invoked his right to counsel and the questioning ceased.  He later posted bail on the traffic warrant and was released. Within days, the police obtained additional evidence that linked the defendant to the murders.

As a result, nine days after his release, the defendant was again arrested and charged with murder.  Despite his prior invocation of his right to counsel, the police attempted to question the defendant once again. This time, the defendant waived that right and provided incriminating admissions to the police.  The defendant later tried to have the statements suppressed, stating that questioning should not have continued after he invoked his right to remain silent.

Not this time, said the court.  Someone who has asserted the right to counsel during a police custodial interrogation and is later released may be interrogated again if the gap in time between the arrests afforded a reasonable opportunity to consult an attorney.  Although in this case they stated that there was a reasonable opportunity, they did not set forth a hard and fast rule on the amount of time in future cases.  The facts must be looked at on a case-by-case basis under a "totality of the circumstances," they say.

The Fifth Amendment right against self-incrimination is very important, and the Miranda warning does a lot to protect it, but the courts have been ruling in such a way as to create some traps for the unwary. In a previous post I talked about how the Miranda warning does not have to be "renewed."   There a witness was brought in for questioning and given Miranda at the beginning of the interview.

Later during the questioning he became a suspect and confessed.  His argument that the warning should have been given again after he went from witness to suspect fell on deaf ears.   Here, a suspect must reassert his rights without a new Miranda warning.   In light of rulings such as this, I advise people to keep their rights foremost in their minds when dealing with law enforcement, and not make any assumptions.  Otherwise, they could be in for some nasty surprises.

Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.


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