As a criminal defense practitioner for over a decade, I have frequently sat down to my first meeting with a client and been told that the police did not advise them of their Miranda right to remain silent. More often than not, my response is that it doesn’t matter. After disappointing my client with the bad news, I explain to them that the police only need to read someone their rights prior to “custodial interrogation.” That is, unless the police have a person in custody and then ask them incriminating questions, the failure to give Miranda warnings does not usually afford the defendant a legal remedy.

In perhaps the most typical case, a client will have been arrested for operating under the influence of alcohol (OUI/DUI/DWI). In probably 95% of those cases, there is nothing in the police report about anything the defendant said at the police station, and the prosecutor will not be introducing as evidence at trial any such statements. Since there are no admissions obtained in violation of Miranda, there is no issue.

The other most common example is when a police officer asks questions of a driver at the side of the road, such as “how much have you had to drink this evening?” without giving the Miranda warnings. There is no violation of Miranda in this instance because the individual is not in custody at that point, so there is no custodial interrogation. The officer in this situation has usually not yet made a determination to arrest, and is just making what is called a “threshold inquiry.”

But sometimes the police do intentionally elicit incriminating responses of a person in custody without “Mirandizing” them. The recent Massachusetts Appeals Court case of Commonwealth v. Duplak is illustrative. In Duplak, the defendant was arrested and taken to the police station. Sometime during booking, and prior to giving Miranda warnings, the police asked the defendant if she owned a backpack that was found near her at her arrest. The defendant admitted ownership of the backpack, and the police then asked her about certain pills that they had found inside the backpack.

The defendant was ultimately convicted of possession of a class E substance. On appeal, the Appeals Court held that the defendant should be awarded a new trial because her trial attorney was ineffective for failing to move to suppress her statements given in response to the questions about the backpack and pills.

The Appeals Court held that the question were not routing booking questions, but were intended to elicit incrimination admissions. The custodial interrogation began, said the Appeals Court, when the police asked about the backpack. The follow-up question about ownership of the pills then put the defendant in a predicament: if she said that the pills weren’t hers, she was incriminating herself because she was admitting to possession of someone else’s pills; if she said that they were hers, she was similarly incriminating herself if she did not have a prescription for them.

If you have been charged with a crime and you believe that your rights may have been violated, you should retain the services of an experienced criminal defense attorney. In fact, even if you don’t think your rights have been violated, you should hire an attorney to analyze your case. Even if it turns out that the police did everything “by the book,” there may be other defenses available to you that an attorney will recognize (not to mention being able to plea bargain for you, and take the case to trial if need be).

Attorney Kevin D. Quinlan
Uxbridge, Worcester County, Massachusetts
(508) 723-6384