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Police Not Required to Give Miranda if Suspect’s Lawyer is Present During Questioning!?

In a stunning decision to many in the criminal defense bar, the Massachusetts Supreme Judicial court recently ruled that police officers are not required to give a criminal suspect his Miranda warnings if he has had the opportunity to consult with his attorney and that lawyer is present during police questioning. In a 4-3 decision in the case of Commonwealth v. Wally Jacques Simon, the Massachusetts Supreme Court’s majority held that a criminal suspect’s protections on the issue of Miranda warnings are safeguarded if the lawyer is present and can stop questioning at any time. Unbelievable…

The case involved a Winchester, Massachusetts, home invasion that led to one man being murdered, and his brother being seriously wounded. The brother was able to call 911 and give a description of the alleged perpetrator. After obtaining the man’s identity and a few days after the murder, Massachusetts State Police Officers located and followed the criminal suspect to a parking lot in Medford, which ended up being outside his attorney’s office. The defendant was allowed to go into his attorney’s office and speak with him, and was then questioned by police, with his attorney present, in the lawyer’s conference room.

In his Interlocutory Appeal, the defendant claimed that, because the police never provided him with his Miranda Warnings, any statements he made should be suppressed or excluded from the criminal trial against him. In ruling that the police were not required to specifically provide the criminal defendant with his Miranda Warnings prior to being questioned in this case, the Massachusetts Supreme Judicial Court held that Miranda was not necessary because the defendant had an opportunity to consult with his attorney before questioning, and the attorney was present during the questioning.

In reaching its decision, the Court relied on language in the United States Supreme Court’s decision in Miranda v. Arizona, which stated that there can be “other fully effective means…to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it.”

The Massachusetts Supreme Court’s decision in this case inexplicably now puts the burden on the criminal defendant because it reasoned that the presence of an attorney during interrogation and the opportunity to consult with his lawyer beforehand is an adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. In other words, with a lawyer is present, the attorney can detect and describe even the most subtle coercive or suggestive influences, and thereby terminate the interrogation.

Although the Court emphasized that there are many other jurisdictions around the country that have concluded that Miranda warnings are not necessary when an attorney is present during questioning and that criminal suspect has had an opportunity to consult with him, Massachusetts has historically and proudly offered greater Constitutional protections under Article 12 of the Massachusetts Declaration of Rights than does the 5th Amendment to the United States Constitution.

There are so many reasons why the Massachusetts Supreme Court made the wrong decision in this case and opened up a “Pandora’s Box” for future Constitutional violations on the issue of Miranda warnings…

Boston Criminal Defense Lawyer, Lefteris K. Travayiakis, Disagrees with this Massachusetts Supreme Court Decision:

By now ruling that Miranda warnings are not necessary if a criminal suspect has (1) had an opportunity to speak with a lawyer and (2) where that lawyer is present during the police interrogation, the Massachusetts Supreme Court has essentially put the onus on the criminal defendant and his attorney to make sure that his Constitutional Rights are explained and understood.

The 5th Amendment Privilege against incrimination is a fundamental right that all citizens enjoy against custodial interrogations by police or government officials. Miranda warnings are in place to ensure that, when a criminal suspect is questioned about a crime in which he may be involved, that he understands that he has the fundamental Constitutional Rights to remain silent; that anything he say can and will be used against him in a court of law; that he has the right to speak with an attorney and have that lawyer present during any questioning; and that if he cannot afford a lawyer, one will be appointed to him.

Article 12 of the Massachusetts Declaration of Rights has often provided citizens of Massachusetts with greater Constitutional protections than those that are afforded by the Federal Constitution. For this reason, and because this was the first opportunity of our state’s highest court to rule on this specific issue, I am shocked that the Justices didn’t take this opportunity to establish a bright-line rule requiring that police must provide a criminal suspect with his Miranda warnings prior to police questioning, even if he has already spoken to his lawyer and irrespective if his lawyer is present during questioning.

One of the problems with the Massachusetts Supreme Judicial Court’s decision in this case is the issue of a criminal suspect’s waiver of Constitutional Rights pursuant to Miranda. For statements to be considered valid post-Miranda, the law as it stands mandates that the criminal suspect being interrogated must understand his rights, and then make an intelligent, knowing and voluntary waiver of those rights. A person’s Miranda waiver is a personal decision, and the waiver cannot be made by his attorney, even if his lawyer is present – the waiver must come from the person being interrogated. The court’s decision, however, implies that if a criminal suspect submits to questioning with his lawyer present, he is also thereby knowingly, intelligently and voluntarily waiving his Miranda rights? …doesn’t make sense to me…

What if the person consulted with a lawyer who has never practiced criminal law?

What if that lawyer doesn’t know what Miranda rights are and thus not able to properly advise his client about the potential consequences of submitting to police questioning?

How will the criminal court’s reasonably assure that a person was advised of his Constitutional Rights when his conversations with his lawyer are protected by the Attorney-Client Privilege?

In its decision, the Massachusetts Supreme Court dangerously assumes that, just because a suspect has consulted with a lawyer, that he was necessarily advised of his Miranda rights! It doesn’t make sense to assume that just because someone has ‘consulted’ with his attorney that he was advised of Constitutional protections!

It is unfortunate that the Massachusetts Supreme Court didn’t take their first opportunity on this very critical criminal law issue to make a bright-line rule requiring police officers to administer Miranda warnings in every circumstance where they seek to interrogate a criminal suspect, and then to obtain that suspect’s affirmative waiver of his Miranda rights prior to initiating any questioning, irrespective of whether the accused has a lawyer present or had consulted with one beforehand. This basic rule could have provided the minimum safeguards to ensure that a criminal suspect understands his Constitutional rights of self-incrimination, and has voluntarily, knowingly and intelligently made a decision to waive it.

This is why I always say, it is very rare that anything good will ever come out of your agreeing to speak with police officers who are investigating your alleged involvement with a crime. If you ask me, it is always better to assert your privilege against self-incrimination, remain silent and refuse to speak to anyone except your criminal defense lawyer. After all, better safe than sorry…

Because the context of criminal law is vast and complex, it is critical that you consult with an experienced criminal defense lawyer if you have been charged with a crime or even just being investigated for any alleged criminal activity. From many years of experience as a Massachusetts Criminal Defense Lawyer, I understand and have acute knowledge in a criminally accused person’s Constitution Rights and know how to protect them.

I know that if you are charged or are being investigated for a crime, any mistake on your part may have damaging consequences for your case and even your life. For that reason, I am available 24/7 to consult with you about your criminal matter.

To schedule a Free Consultation to discuss your criminal case, e-mail or contact me directly at 617-325-9500.

Click here to read the Massachusetts Supreme Judicial Court’s full decision in Commonwealth v. Wally Jacques Simon.