Take It From Two Defense Attorneys - DO NOT TALK TO THE COPS

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:01 Matt: We can make an exception from the general rule that we don't give legal advice to this podcast to tell people, don't talk to the police. Like, you're just not going to make it better. That's kind of the point of Miranda.

0:00:17 Liz: If you have an encounter with the police, ask them, am I free to leave? If the answer is from them, no, you are in custody and you should say that you want a lawyer.

0:00:35 Matt: Okay, welcome to Opening Arguments. Joining me is OA's fifth Beatle, Liz Skeen. You've earned the title.

0:00:40 Liz: Wow, that's quite an intro and opening. Thank you. I'm very happy to be here. I am very happy to talk with everyone today about this.

0:00:50 Matt: Yeah, long overdue. Liz, of course, is a practicing defense attorney, so we want to talk to her about Miranda, just kind of a follow -up to our Miranda episode, and talk a little bit about how it all works out in practice, and then also what has been going on with Miranda since 1967. There's a lot, quite a lot going on. Let's start at the beginning here. You've been practicing criminal law for how long now?

0:01:10 Liz: In some version or another over a decade,

0:01:13 Matt: You've seen your way around some Miranda. You know what Miranda looks like in practice.

0:01:16 Liz: I've seen some Miranda in my life. That is definitely true.

0:01:20 Matt: Got some suppression.

0:01:21 Liz: Yeah, I've done some suppression hearings. I mean, I actually should say of all the shows that I've sort of been on or I prepped for, I actually, in some respects, felt almost the most intimidated by this one because Miranda is, although a sort of very simple rule that you can just articulate, or you can articulate the four requirements of Miranda, figuring out whether or not Miranda has been honored, whether or not it's been scrupulously honored, what is actually a very complicated fact -specific inquiry. I think that the Supreme Court, in originally creating the Miranda rule, thought that they would be kind of cutting down on potential thorny situations. They'd be creating a bright line rule. But in fact, it still leaves open a lot of questions, which is to say, I was kind of intimidated to come on this because every time I do something, every time I prepare for a suppression hearing, a Miranda issue or a voluntariness issue, which we could talk more about, I still review all the case law. I can't just eyeball something and necessarily know. The amount of case law in this is just really enormous, is what I'm trying to say. But I look forward to delving through it and delving through how Miranda has changed in these times or how it has been practiced, I guess I should say.

0:02:36 Matt: That's exactly why I wanted to have you on. And of course, we're overdue to check to catch up anyway. So what better time to catchup than to talk about one of our favorite constitutional rights? We'll be right back to talk About those rights, how they play out in practice, and how they have looked over the last few years.

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0:02:52 Matt: So you practice in the city of New York. How's the NYPD doing for Miranda, generally speaking? Speaking.

0:02:58 Liz: In general, the law enforcement community has surprisingly but belatedly embraced Miranda in some respects. Maybe this is something of a controversial opinion, but I don't think it is, is that there wasn't that much law enforcement support for necessarily overturning Miranda. But there are plenty of times where you see Miranda violated by NYPD, but NYPD is trained in it. One of the documents that I sent over to you to prepare for this was the selection from the NYPD patrol guides, which is something that everyone in NYPD has to study and be tested on at various points. It says explicitly lists out all the Miranda rights. It has an explicit script. For everyone, I routinely receive Miranda cards as part of discovery. I watch videotapes of custodial interrogations where my clients are advised of their Miranda rights and they go ahead and waive them.

0:03:49 Liz: I wouldn't say that it's poorly practiced per se. I think law enforcement's come to embrace it because it can act as a cloak and protection for what ends up becoming some, frankly, coercive things that might happen thereafter.

0:03:57 Matt: And they know pretty well by now that the case is not going to make it too far if they don't just give those basic warnings. So why not do it?

0:04:07 Liz: Exactly.

0:04:08 Matt: Can you give us an example of a successful suppression matter that you've litigated without giving too many details?

0:04:12 Liz: So I think it's important to kind of think about kind of like what Miranda looks like in practice. It's kind of awkward to read someone their Miranda rights. You know, if you're performing an arrest, it's sort of an unnatural script. You have a right to remain silent. Do you know anything can be used against you in a court of law? You have the right to consult. It's a bit, bit of a thing. And sometimes you'll see circumstances. And I was thinking about this where someone, the police come to a scene and they say something like, Hey, what's going on here? Or, Hey what happened?

0:04:41 Matt: And people just start talking.

0:04:42 Liz: And people just start talking, right? That's kind of an interesting area under New York law. To some extent, there's a New York case called Huffman that gets used to say that you can sort of ask one or two, Hey, what's up? What's happening here? Types of questions. And that's not considered to be a Miranda violation. But if you ask too many more, you start to be like, Oh, and where did the knife come from? Then that is a violation. So the kind of point where this gets litigated the most, and I've had some successes when the police maybe we don't initially advise one of them around the rights and they do start questioning them at the scene and those statements get excluded.

0:05:23 Liz: At the same time, the really good and meaty statements that police get are ones that happen in the police precinct when they're really doing an intense interrogation, when they're doing a sort of, well, it's still custody potentially if it's, you know, if they're under, yeah.

0:05:33 Matt: When it's custodial. Sure, sure. If they're just on the street, potentially it could be custody. Sure?

0:05:39 Liz: I mean, it'S what a reasonable person would be understand to be custody. It's a question if you've heard all the time, you have an encounter with the police, ask them, am I free to leave?

0:05:47 Matt: Mm -hmm.

0:05:47 Liz: If the answer is from them, no, you are in custody and you should say that you want a lawyer. Yes.

0:05:53 Matt: It's the one thing that super annoying libertarians have always been right about.

0:05:57 Liz: I've had a few circumstances where I've had some success in litigating Miranda, where police have asked my client some questions at the scene. None of those have been like enormous victories, to be honest. Like normally those were just kind of maybe slightly problematic statements, but nevertheless, any evidence that you you want to keep out is still good in my view.

0:06:18 Matt: Sure yeah. I'm just looking at this this patrol manual thing that you sent me here. It seems pretty straightforward. This is just part of the standard NYPD training. Yeah, I mean, I can imagine you're talking about it as a performance, and it is. I can image a cop turning to the fourth wall and saying, what's my motivation here? What am I doing? But it does make a lot of sense, and it always has to me that there's just a series of questions that they have to ask, and that's what the Supreme Court said has to happen. Good to know that that's more or less working. Do people waive them more often than not?

0:06:24 Liz: So literally all the time.

0:06:42 Matt: Constantly.

0:06:43 Liz: So I'm constantly in an interview. I'm asking some question and then this prompts an answer of, well, when I talked to the police and I was like, Oh, Oh. And, and, you know, we're not on video, but, um, just for background, like my, my head is in my hands as I'm talking to Matt right now. My head is also in my hands. My clients tell me that. And then they'll kind of come up with this explanation. Oftentimes why'd you talk to the please? Why'd you do this to me? Say, Oh but no, they explained that, you I wanted to let them know because I really didn't do anything. And I was like, you're sitting here with me. Things didn't work out so well for you talking to the police, right?

0:07:16 Matt: A criminal charge has issued.

0:07:19 Liz: And they're like, oh yeah. I would say people really do waive their Miranda rights quite a lot. My understanding is that if you look at statistically speaking, pre and post Miranda, it's not like statements issued by individuals in custody just dropped, had some sort of precipitous fall or drop or anything like that. I don't think that really happened at all, actually, is my understanding, statistically speaking. So people still do it. People want to explain themselves. There's so much to talk about with Miranda. I was thinking we could do like a hundred hours on this, except I don' t think anyone would want to hear it. But there was this practice, interestingly, I was looking at some of the cases to prepare this because there are just so many variations because this is just all stuff in the real world. Do these things in some way impact or diminish or not fully count as your your Miranda rights are not fully sort of exercised because a certain set of things in the world happen. So the Queen's DA's office used to have a sort of preamble. They would give certain defendants prior to being Mirandized where they would say something like, well, this is like the one time that you're going to be able to talk to somebody. Also, if you have an alibi, this is when you're supposed to tell this.

0:07:39 Matt: Great. Great, sure. The Miranda podcast. Asked,

0:08:33 Liz: All this other stuff that really counterweighed against the

0:08:37 Matt: The entire point of Miranda?

0:08:39 Liz: Entire point of Miranda, right? So making it seem like you could exercise these these rights, but FYI, this is the only time you're going to have to do this, that, and the other thing. And that was a case that one of our appellate courts in New York state, they said, absolutely not. Like that's not, you're not doing it right.

0:08:54 Liz: You're infringing on people's Miranda rights by doing that. So there's just, there's Just so many variations of just things like comments that can be made, whether or not Miranda rights are sort of set in certain ways. We'll talk about also the other way, like what invocation is of Miranda rights, because there's so many ways that people can respond to being told their Miranda rights that aren't just necessarily a yes, I will talk to you or no, I don't want to talk to You.

0:09:17 Liz: It leads to so many different potential outcomes. So yeah, there's just there's a ton of litigation over this that comes up in almost every case. And just by way of process, I think I would just add one other thing to understand just from a perspective of a criminal defense lawyer is in New York, we get notice of any statements that the prosecution has obtained from police actors that they would like to use against our clients. And so we will get that notice. And then you file a motion for a suppression hearing. In general, we almost always have those motions granted as to getting the hearing, not necessarily as to suppression.

0:09:50 Liz: And you have a suppression hearing where anywhere from one to however many officers will testify as to circumstances in which these statements were elicited. They're fact intensive hearings that talk about the lead up to sort of the arrest, custody, the actual elicitation of the Miranda rights. Oftentimes body -worn camera is used. Oftentimes we're looking at a tape video statement and then arguments are made. And these are all happening pre -trial.

0:10:17 Matt: So I think there was a lot of talk around the time that Miranda came down that this was going to be the end of American law enforcement, that there was just no possibility that we'd ever be able to convict anybody again because people would hear these rights and magically shut up and never talk to police. But it sounds like you're saying that's just not how it plays out in the real world.

0:10:32 Liz: No, not at all. Yeah.

0:10:33 Matt: Not at all. Okay. I don't know if it's good or bad, but that's how it is. But generally speaking, I think we both agree you shouldn't talk to the police if you can possibly help it. We can make an exception from the general rule that we don't give legal advice to this podcast, to tell people, don't talk to the police. Like, you're just not going to make it better.

0:10:48 Matt: That's kind of the point of Miranda. Yeah, I wanted to get into what happened after Miranda. The first part of this that we recorded kind of left off after Ernesto Miranda was killed in a bar fight and everybody was Mirandized after he was killed in that bar fight, and they never actually convicted anybody for that. Before we get on to some of the stuff you've got on other cases that have come down that have kind of narrowed or limited or otherwise expanded Miranda, with Dickerson, which I think is a really interesting case. Dickerson v. B. Oz in 2000. So this has to do with 18 U.S.C. 3501, which Congress passed in 1968 as a response to Miranda. And LBJ was advised at the time that he signed it that this was probably unconstitutional. So he negotiated with Congress and had them write into the law that this was something that could be used at the discretion of DOJ. And they actually, to their credit, they chose never to really use it at all. But I'll just read it very quickly so we can see what happened when Congress tried to overrule something that was an established constitutional opinion that was based in the Fifth and Sixth Amendments. In any criminal prosecution brought by the United States or in the District of Columbia, a confession, as defined, shall be admissible if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines the confession was voluntarily made, it shall be admitted in evidence. The trial trial judge shall permit the jury to hear relevant evidence. So that's just obviously in contradiction to the basic idea of Miranda that it's not voluntary until you've been given the list of rights, the enumerated rights. This kind of harkens back to, as I understand it, the analysis before Miranda. Do you know much about that, about how they were looking at voluntariness back then?

0:12:24 Liz: I actually have quite a lot to say about voluntariness. So what 3501 did was it basically said, screw Miranda, we're just doing voluntarines. So voluntariness is a test that still exists and it's analytically separate from Miranda. In all of my cases where I'm moving for a suppression hearing, as long as I have any sort of plausible basis for both, I'm saying there's both a voluntariness issue and I'm saying that there's also an issue as to statements were occurred in violation of Miranda. So the idea of voluntarines is it's a totality of the circumstances test that takes into consideration all of the surrounding circumstances. So to determine whether or not someone's statements were considered to be truly voluntary. The idea of voluntary is whether a statement was made free of influence that would render it untrue.

0:13:12 Liz: I hope I'm doing a good job explaining it, but already you can see how this is kind of a big bag of worms and it's way less clear than Miranda. So the idea of voluntariness is, for example, cases that found, they're very obvious things that found that something was not voluntary. So for example there's like, there's this voluntariveness case law gets kind of developed in the early 1900s. It comes from due process So Brown v. Mississippi, someone's whipped. And so their statement is overturned. That's a 1936 case. Not great. A good outcome, but not a great circumstance. The idea being, of course, like someone being whipped is likely to produce a statement that could render it, you know, quite possibly untrue. Ashcraft v. Texas, someone was sleep deprived. That's a 1944 case. Someone's sleep deprived, and so in this circumstance, a confession that was considered to be reliable because it was corroborated by other facts gets thrown out. It doesn't have to be that this statement was necessarily untrue, but the circumstances could have rendered it untrue or could have rendered someone likely to say something that was untrue.

0:14:10 Matt: So we'll just keep the lights on, give you no chance to sleep, play live music until you talk.

0:14:18 Liz: Yeah, 36 hours, no sleep. There's a case in the 1950s, the name of which I'm forgetting right now, but where a woman was told she would have her children removed from her, this is a Supreme Court case, and she would lose custody, you know, if she were not to confess. So the idea is making sort of really improper threats, making improper promises. And what's an improper promise? It's not that you can't make a promise per se. It's that you Can't make A promise that's going to cause someone to say something that's likely to be untrue.

0:14:56 Liz: It's a real bag of worms. Yeah, so no coercion, no torture, no improper conduct or improper pressure, sleep deprivation, no improper promises. Says that's the world of voluntariness. And that's what that DC statute did after it was passed up for Miranda. It basically said, screw Miranda. We're still in the world of voluntarianness.

0:15:18 Matt: And of course, all the stuff you just mentioned is the kind of thing that Earl Warren went on about in Miranda, like exactly the kinds of problems that they were seeing with police departments around the country, and the reason that the Supreme Court took it up at all. But of course, you could read somebody that Miranda writes and then waterboard them, and that still wouldn't be voluntary. So we still have to be able to look at that, right? There's no magic talisman just because you read the rights.

0:15:37 Liz: Absolutely. And that's, that's another thing, right? So you read some of their Miranda rights and they waive their right to counsel. And then you started to torture them. Like, sorry, like that statement's still involuntary. We don't win on voluntariness that often. It's, it's sort of a weak kind of watered down test. And it really has lost a lot of its oomph after Miranda, but it is absolutely still there and is still important. And it didn't go away.

0:16:01 Matt: But Congress tried to replace Miranda with a voluntariness test, so basically to revert to what was pre -Miranda, the standard. And I just think this is such an interesting situation, Dickerson, because the Department of Justice, This is at the time under Janet Reno, was given orders not to use 3501, as many DOJs previous had been told not to, even though Congress had given them this tool. They just did not use it. And in this case in Dickerson, I just want to mention before we get on to the other cases we're going to talk about, this was somebody who was accused of being a conspirator in several bank robberies. And he gave up some information about the primary culprit and then also inculpated himself. Himself. And this was a pretty standard Miranda challenge. But in the course of it, the district court found that it had to suppress the standards, the statements, right? Just typical Miranda thing. He was not Mirandized, but also ruled that they were voluntary. So the Department of Justice argued that 3501 must apply at the district court level. But they were told by Janet Reno, the Department justice, they could not use that at the appellate level. So, the Fourth Circuit stepped in at this point and said, well, we want to look at 3501. So even though the Department Department of Justice has declined to raise 3501 in front of us,

0:17:07 Matt: We're going to bring it up. I've never seen anything like this. Sui sponte. As an appeals court, we are going to decide that this applies and we want to look at its constitutionality. And the Supreme Court did the same thing when they reviewed it. And The Supreme Court went through this whole analysis, answering a question that nobody had asked. They had to appoint Paul Castle, who had clerked for both Scalia and Berger, to come in and talk about 3501. Because at the time, there was a pretty serious conservative effort, and I believe Thomas and Scalia both dissented in this case, because they thought that Miranda never should have happened. And there was a generalist conservative idea that it shouldn't have. And remember, the statute was passed in 1968. And it took until 2000 for anybody to challenge it because DOJ was that intent on just not using it. But it was on the books all this time. It said, essentially, they could just look at voluntariness, whether or not somebody is Miranda's, directly in the face of Miranda, as you said.

0:17:53 Matt: So I just think it's a particularly interesting case because as a matter of separation of powers, the court found that it was a constitutional case, that Congress couldn't overrule it, and the Supreme Court's decision stood. And I've written an interesting analysis from Erwin Chemerinsky, the great constitutional lawyer, saying that Dickerson was wrongly decided because it never should have been in front of them, because this was all sua sponte. It was impinging on the executive's discretion to just not invoke 3501. It's an interesting conversation to have, but the weight of it really, what it came down to for Dickerson, was that they wanted to affirm, and this was a very different Supreme Court by 2000, but they wanted the Warren Court's holding. They said that stare decisis weighs heavily against overruling it now, and it's become embedded in routine police practice. This is something that everybody knows. It's an easy rule. Let's just keep it. So that's a good sign. There was concern at the time that it might get overruled, but that's Dickerson. I just think it's a particularly interesting case because it was an attempt by Congress to overrule something that was unquestionably a constitutional case. And Scalia is basically saying this is not actually a constitutional rule. This comes up later in a case I'm sure we'll talk about, but it's more of a prophylactic rule. It was sort of like a way of protecting your Fifth and Sixth Amendment rights, but it's not itself a constitutional right to have. It's a very subtle kind of difference. That's just something I wanted to raise right away, was that Congress attempted to overrule Miranda, and that was rejected by the Supreme Court, even though it took many years to get to that point, about 42 years.

0:19:11 Liz: Think an interesting addition to what you're saying is it's, it's interesting to look at who is in fact writing Dickerson and it's Rehnquist. Rehnquist is sort of no great liberal justice icon to say the least. And in fact, he was an, uh, I believe an assistant, he was an assistant U.S. attorney when Miranda first came out. He famously hated Miranda and spent most of his time when he actually, you know, was on the court carving out tons of exceptions to Miranda. And he finally gets his moment in 2000, by the way. So again, this is, you Know, years and years and years after this not used piece of legislation is passed or not, not practiced. And he Finally gets his Moment to overrule it. And he doesn't. And again, I have a lot of cynicism about Miranda. I remember talking to you about this and kind of what Miranda means or doesn't mean to me. I think that Miranda is a cloak that it's nice to have. It's good that it wasn't overruled. But the law enforcement community has accepted and come to appreciate Miranda because it's not actually nearly as bad as they thought it would be. It allows them to say, well, they waive their Miranda rights and we can just kind of go forward. And even though it is analytically different than voluntariness, I think it kind of sweeps a lot of the voluntarious issues under the rugs.

0:20:35 Liz: Because we say, well, this person signed this Miranda card, even though they were interrogated for nine hours, and they were lied to and this and that, but like, they actually waived the rights. So it's great that Miranda wasn't overruled. I think it's good that it kind of put everyone's rights out there. I think there's, there's some really good things about it, but also, you know, you have to look at William Rehnquist authoring an opinion saying it's cool. Let's keep Miranda stare decisis. Um, not by the way, the best reason, uh, opinion I've ever seen. It's a little confusing, I will say.

0:20:38 Matt: Sure they do their rights.

0:21:07 Liz: And you have to say, why is he doing this? And it's not because he's become a real great advocate for the rights of criminal defendants.

0:21:14 Matt: That's a great analysis. Yeah, that's a really important perspective because, you know, when it comes down to it, we think of Miranda as being kind of this classic golden era war in court liberal decision, which it is. It's all of those things. It is very important. But it's also 30 seconds at the most for police to do. It gives them a lot of protection. They can do a lot after that if they've just given people their rights. That's a really important clarification. Let's come back in a minute here and talk about the way that Miranda has been refined or narrowed down or destroyed over the years. I don't know. I'm interested to your perspective. We'll be right back.

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0:21:53 Matt: So Miranda comes down in 1967, and there has been quite a lot of time between now and then. What can you tell us about that time?

0:22:00 Liz: Again, I am so overwhelmed. I was so overwhelmed preparing this. I mean, there are so many Supreme Court cases on this. There are so many New York cases on this. So many Second Circuit cases. So, you know, what do we what can I tell you? Let's just start with what actually is going on with Miranda. First off, let me just make clear, you know, kind of what the one central holding is a Miranda that has not changed. So prior to any questioning, a defendant has to be informed in clear and unequivocal terms, any any custodial questioning, but we'll get there, that he has a right to remain silent, he or she or they, that any statement that person does make may and will be used against them in court, that they have a right to consult to an attorney and have that attorney with them during the interrogation, and that if that person is indigent, that they will have an attorney appointed to represent them. So those are sort of the kind of core elements that have not changed. And again, it has to be kind of very clearly stated. So silence, any statement may be used, right to counsel, and you will have a right to appointed counsel if you can't afford it. So what happens after that? Two things to kind of note that there's sort of two triggers to Miranda that are implicit here, but get really articulated, which are one, it has to custodial interrogation. So that's custody and interrogation, so there's case law that develops as to what constitutes custody, right? When are you actually in police custody for the purposes of Miranda? When do Miranda rights need to be read to you in those circumstances? And also what constitutes interrogation? So I can give an example as to the issue as to custody gets really litigated in a couple of interesting cases. There's a case called Berkemer where someone's weaving back and forth in traffic and they do happen to weave their way into a traffic stop, the traffic stop was already there.

0:22:02 Matt: 30 seconds. Yes. A checkpoint?

0:23:54 Liz: Yeah, a standard like traffic like a checkpoint. And so they weave their way over there. The police basically already were planning to probably arrest this person. I mean, more or less, that's what the decision says. But the Supreme

0:24:09 Matt: Because you're always free to leave, right?

0:24:10 Liz: Court rules that ordinary checkpoints are just not considered to be custodial in theory until you're not. And I always find that a little silly because I don't really think I mean like if you're sitting there in a sort of traffic stop situation, I mean you're not well first off you're not always really leaving a traffic stop. If you if you drove off in a traffic stop, you get in quite a lot of trouble, but they find that not to be a custodial situation. I think that that's an incorrect decision, but that's like, that's Berkamer that's in, in 19, uh, 84. And in that, the idea of that decision was that you look at what a reasonable person would think in that situation.

0:24:38 Liz: Again, I think a reasonable person in a traffic stop would think they were in custody, but Supreme court says, no, then you have different decision about 10 years later, Stansbury. This is another custody decision in Stansbury. Someone please go to someone's home because they They think they're a witness and a murder suspect. They bring that person over to the police precinct and they continue to interrogate them. Well, it turns out that person is in fact in the process of this interrogation becomes the suspect and makes, makes incriminating statements. They say, what would a reasonable person think if they were in a police precint being interrogated that they were incustodied? So in that case, those statements don't get to get used. So that's kind of what, what the sort of version of custody is, is it's an understanding of of what would a reasonable person think in that particular situation as to custody? Am I in custody? I'm not in custody. Then there's interrogation. And there's all these different ways that someone can be interrogated, right? What if the police start to interrogate you? Please read you your Miranda rights. You say that you don't want to speak to them. Can they start speaking to you again? All these different variations of whether or not you can can start interrogating someone again. And a central thing that that also turns on is whether or not

0:25:54 Liz: You invoke your right to remain silent versus your right -to -an -attorney. And I can say a little bit more about that, but I don't know if there's anything that you want to jump in on.

0:26:02 Matt: No, this is following pretty much as I understand it. But even the fact that there's this, I mean, there's so much nuance, because we're talking about the Fifth and Sixth Amendment in Miranda. It's all kind of tied up, in one place. So just to remind everybody, there is, in Miranda, bound up a Fifth Amendment right right to counsel, a Fifth Amendment right to silence, and a Sixth Amendment right to counsel. They're all just kind of at different stages in the custodial interrogation, right?

0:26:26 Liz: Dickerson, for example, it really goes hard on it as being like almost purely a sixth amendment issue.

0:26:33 Matt: Because that's the more conservative view, is that it's more of a Six Amendment counsel issue than it is a Fifth Amendment issue. But Miranda itself, like really kind of the breakthrough that it had was also finding, and this came out of the oral argument, that it also includes a Fifth Amendment right -to -counsel, at the point at which you're in any kind of custody, that you should be able to immediately invoke your right to council, and it shouldn't take charges, it shouldn't the point to which you are the primary or a suspect even, that you should get the right to an attorney. And I think that's pretty important because

0:26:59 Liz: I agree. To kind of just then redirect in turn, or to direct us a little little further. One of the things that's very odd in the development of Miranda in basically the years following is you have kind of two different strains of cases as to invocation. There's sort of the Edwards line of cases. Edwards is a really important, maybe one of the most important state cases after Miranda. That case, it's like from 1981, a defendant in that case, Mr. Edwards, whereas he invoked his Miranda rights and specifically his right to counsel. And then a day later, police officers go back to interrogate him. The Supreme Court says, you can't do that. And they throw out the interrogation because they said that he invoked His right to council.

0:27:45 Matt: There's no expiration date.

0:27:47 Liz: Well, we learn eventually, and this is in Shatzer that you get two weeks.

0:27:54 Matt: There is an expiration date,

0:27:54 Liz: This is like the only time that that like you actually see the Supreme Court it may be like, um, and Shatzer, we learned in Shatzer, admittedly Shatzer, like it was actually several years, but in Schatzser, you, we learn that you get, you invoke your right to counsel. They can't bother you for two weeks. What if you invoke your right to silence? You say, I want to, you know, I'm invoking my rights. When you say I want, I wanna remain silent. If you invoke, you're going to be in silent. Like it's kind of fuzzy. It's like they can try again, Then maybe in a few hours, you know, originally these kind of get broken down in different ways. First, like there's a case where someone invokes their, their right to remain silent. And then a little, you Know, a couple hours later, a different police officer comes to talk to this person about like a different case. Uh, they Mirandize, they remirandize the person, that person at that point says they want to talk. And Then that person makes incriminating statements, statements about different case, then it just starts to get the kind of like a bit fuzzier all over the place. And I think different states have sort of somewhat different rules as to this. But I would just say that like, if someone says they want to remain silent, you have to scrupulously honor it. That's the phrasing that the Supreme Court uses and stop questioning cease at that moment. They say they want to be silent. Don't finish your question, you know, go away.

0:29:13 Liz: But if there's a pronounced break, you can come back and try again later.

0:29:13 Matt: A pronounced break. So somebody might decide no longer to be silent. You just want to check in with them a couple hours later just to see how's that silence working out for you? Wow. I actually did not know that these had expiration dates. I like the idea of a, I mean, I don't like this actually, but a trial period, a 14 -day trial period of your right to counsel. Just see how that feels and come back back two weeks later and see if you still want to have it I how do they come with 14 days that's completely arbitrary even for the Supreme Court

0:29:25 Liz: Basically, Schatzer is a weird case. It's a totally arbitrary case. Shatzer is pretty funny. It'S a very odd, like actual Supreme Court holding as you would agree, but that's how they get there. They basically say two weeks between the first and second tense. I'm just pulling up right now. And when it has been determined that the defendant pleading Edwards, so Edwards again is the one that is the right to counsel one, has been out of custody for two weeks before the contested interrogation, the court is spared the fact intensive inquiry as to whether he ever inserted his... Yeah, so it's two weeks under Stratzer.

0:30:17 Matt: Oh so he's had plenty of time to relax and think about it and he's not sitting there in an interrogation room all day the way they were worried about before he's at home on his couch, thinking about it. Okay, that's still weird

0:30:27 Liz: There's a break in Miranda custody. And so that is what happened. And the actual case in Shatzer, it had been a couple of years, they basically have gotten more evidence. So then they tried to talk to him again. And at that point, he made more statements.

0:30:34 Matt: I could see that that makes

0:30:41 Liz: Another, you know, case that's kind of interesting in terms of like, what is invocation of rights look like you have Davis, which is a case in 1994, where the Supreme Court says the invocation of your Miranda rights has to be clear and unambiguous. And that's pretty interesting because of how that develops later on. So for example, you have this case Bergheis, I might be pronouncing it incorrectly. It's H-U- IS. You have a defendant who more or less, he gets asked a bunch of questions, but he just stays silent. He just stays totally silent for three hours being asked questions here and there. Does he say, I want to remain silent? No. Finally, three hours in, again, it's a big period of time. It's not three minutes. He starts answering questions and makes some incriminating statements. The majority finds, okay, well, he did not clear and unambiguously invoke his right right, to remain silent. Justice Sotomayor in the dissent is losing her mind being like WTF. He literally was silent. Like he was, he was living the right. He was doing the thing. Like, come on.

0:31:02 Matt: Sense bergwies yeah maybe sure yeah he needs to pass over like little engraved card that says, I am remaining silent. I invoke this right. He's not talking to you.

0:31:50 Liz: How can you possibly say that by him not, that he was... It was not... Anyway.

0:31:55 Matt: You get to be in his face for three hours and just see if he still remains silent. Like, come on, he's not Talking.

0:32:00 Liz: Exactly. There's a really terrible case out of Louisiana that I just note because it was not a case that unfortunately the Supreme Court agreed to review. So it remains the law of Louisiana, but in state versus Demesne, don't ever forget the lawyer dog.

0:32:15 Matt: Ah, the lawyer dog. Who could forget the lawyer dog? Very famous on this show.

0:32:20 Liz: So this person says, why don't you just give me a lawyer dog? The Supreme Court of Louisiana doesn't even write a decision. They just say writ denied. After lower courts determined that lawyer dog was so ambiguous because it might've been a canine dog. As everyone knows, I have a dog named Walter and And I, he would be a pretty terrible lawyer and, uh, exactly.

0:32:39 Matt: I was going to say. Walter would be a pretty good lawyer, I'm sure, after all this time hanging around you.

0:32:48 Matt: He doesn't even know how to remain silent from what I've heard.

0:32:52 Liz: Uh, no. Walter would be the worst lawyer ever.

0:32:54 Matt: Having recorded with Walter for many hours, I can tell you.

0:32:57 Liz: Does not know how to read in silent.

0:32:59 Matt: Also, just so everybody understands, I've met Walter. He is delightful. Rifle.

0:33:02 Liz: He's a sweetheart. Um, but yeah, so the actual majority just doesn't write a decision. They're like writ denied. Why don't you give me a lawyer dog? And then the, uh. Great Supreme court they've got in Louisiana. One of the concurring justices basically says, you know, I write to just spotlight this very important issue. He puts sort of the actual statement here. You know, if y 'all feel this, how I feel, you all think I did it. I know that I didn't do it. So why don't you just give me a lawyer dog? Cause this is not what's up. And so the question is, and there's, it sparked more articles than anyone needs to have sparked probably. Well, you Know, in this, they didn't put a comma after lawyer dog. So a lawyer comma dog.

0:33:44 Matt: That well -known thing, the dog that you get to sit with who helps you with your legal rights. Everyone understands what a lawyer dog is.

0:33:52 Liz: He concludes his very extensive two paragraph concurrence by saying, in my view, the defendant's ambiguous and equivocal reference to a lawyer dog does not constitute an invocation of counsel that warrants the termination of the interview and does not violate Edwards v. Arizona.

0:34:11 Matt: I'm going to guess this is a mostly or all -white court that's reviewing that. I mean, I'm not going to check, but I just, I don't.

0:34:17 Liz: Don't ask for a lawyer, dog. I mean, which they did not take that up.

0:34:19 Matt: And the Supreme Court did not take this up. They decided that this could stand. That's cowardice. Okay. All right.

0:34:26 Liz: It's the law of the land. So just, yeah, I mean it's, I'm joking, but I mean and now all I want to do is get arrested and say, I want a lawyer dog.

0:34:34 Matt: Given the choice, I'd take a lawyer cat myself. I feel like they'd be a little striver, maybe? Cats are better at being quiet. That's just a personal preference.

0:34:42 Liz: I'm really just sort of thinking about what a bad lawyer my dog would be. So that's really just stuck on that.

0:34:48 Matt: Well, he's cheap anyway.

0:34:53 Ad: [Ad break 3 — ad music]

0:34:53 Matt: What about other exceptions or other narrowings or modifications of Miranda? What else have we seen?

0:34:58 Liz: As with basically every constitutional rule or anything good, there's always going to be a public safety exception. And that comes up in quarrels where the Supreme Court determines that it's in theory supposed to be narrow exception, that certain situations where spontaneity rather than adherence to a police manual is the necessarily the order of the day. Police officers may ask questions that are reasonably prompted by concerns for public safety, including the public, the officer's own safety. In that particular case, that was one where police officers saw that, um, the defendant had an empty gun holster and basically asked him where the gun was in the supermarket before arresting him is

0:35:43 Matt: Remember this one. This is a classic Waskell case.

0:35:45 Liz: A classic also.

0:35:46 Matt: But this is like the Jack Bauer thing, where like, where's the bomb? Where's the bom? Right? Like it's something's about to happen, or there's a loose gun lying around that we want to find. That makes sense, I guess. I Remember during the Boston bombing case, do you remember this? That Carmen Ortiz, was not a very good U .S. attorney in Boston. She held a press conference. Do you remember this after the Boston bombing? I wanted to ask you about this. So she specifically said during the press conference that the defendant is currently, he's under anesthesia because he had just been operated on. And when he wakes up, we are not going to Mirandize him. They had a press conference to announce that. And you can't really call that a public safety exception at the point at which he's in custody in a hospital bed.

0:36:26 Matt: And I never understood why she would go to the trouble of jeopardizing her own case. Yeah.

0:36:26 Liz: I do remember that. I thought it was very, very odd.

0:36:34 Matt: The whole thing was so strangely. And again, it's, it's a matter of like, and the guy grew up in the United States. Like I'm sure he understands that he has a right to these things, but I don't know why they were saying that they were going to be not giving them to him. But I don't think that's really an exception that you've just been involved in a terrorist thing and you're in a hospital bed, but she's going to be treating it that way. Didn't end up being any Miranda issues in that case. I don't know how it all came out. Any other major exceptions or other sorts of modifications to Miranda we should know about?

0:37:01 Liz: There's a whole world of just different situations that happen. So for example, what happens if you kind of start to ask questions in a custodial interrogation and then you realize you violated Miranda and you immediately Mirandize someone?

0:37:17 Matt: Right.

0:37:18 Liz: Is that good? And there was sort of initially, at least under federal law, I'll get to the New York rule actually, which is kind of interesting. Maybe there was a thought that maybe there was like, like a cat out of the bag theory. Like once you initially violated Miranda, you know, ask someone questions without providing the Miranda rights in a custodial interrogation. You couldn't just like shove in Miranda and then fix it. And then you have this case called Elstad that pretty much rejects that and says that if you started to do interrogate someone, but you can sort of carefully and thoroughly, you know, administer someone's Miranda rights to cure the condition to render and also make someone's previously unsworn statement actually admissible. So Elstad is a pretty bad case.

0:37:59 Matt: That seems like all kinds of abuse you could get out of that.

0:38:01 Liz: Exactly. That's a pretty bad case. New York actually has a different rule so much of the stuff is being done at the level of the states and so different states are going to have different rules but New York basically rejects the Elstad rule we have something called the chapel rule which provides pretty broad protections in those sorts of circumstances I already gave the example of actually though in New York we have something called Huffman which is a little bit problematic but it allows people to kind of ask like a brief on the scene questioning of someone who is in custody, but not necessarily, they're going to say it's not interrogation if it's just sort of like, hey, you know, what are you doing back here? Something like that. That's actually never been in our view. And we always argue this. It's never actually been constitutionalized by the Supreme Court. It is an exception to Miranda again, sort of brief on the scene, like what are you doing here type questions?

0:38:50 Matt: Something more like a Terry stop where you're just kind of checking in. Right.

0:38:53 Liz: No, because here's the thing, Terry actually, so Terry stops and traffic stops are not considered custody. So you can do whatever you want there.

0:38:59 Matt: They're just conversations that you're having, hanging out.

0:39:02 Liz: They're just conversations. Exactly. So this is more like if you're just like someone's in custody, but you're asking them just like one or two quick, like what's up here, man questions. Huffman's a very bad New York case. Another circumstance that you might see something come up. And this goes back to what I was saying. You absolutely have to, you know, clearly and unambiguously state those four rights. You know, you have a case, um, Moran versus Burbine, and that's a case that's in 1986 and one that actually impacts my own practice. So in that case, You have someone who's being held in custody and being subject to interrogation. And his lawyer is repeatedly calling the police precinct saying, can I please speak to my client? Can I please speak to my client?

0:39:47 Matt: Sure.

0:39:47 Liz: And he's not informed, even though he is informed of his Miranda rights, he's not being informed that his attorney wants to speak with him. You know, what the Supreme court basically says is there's no rule requiring the police to inform a defendant or a suspect of his attorney's attempts to reach him. Him. But what that then has made the rule become is in what I do in my job is if I become aware that someone, really anyone, is being held in police custody, I call the police precinct and I invoke their rights for them.

0:40:19 Matt: And you can do that.

0:40:20 Liz: And I can do that. I literally left a rave one time because my friend's brother, I learned was being held into police precinct. And, um, I walked out, looked at the police precinct number called and said, I am the attorney for Mr. Smith. He is represented by counsel. He has not to be questioned on any of the substance of the matter for which he's being held. The other thing that the way that this gets used all the time is sometimes in arraignments, I will be representing someone and they are also maybe potentially going to be held in connection with a different matter. They're going to sent to a different borough in New York. This happens quite a bit actually. If you're arrested, maybe there's an I-card, so some sort of investigation card out for you in connection with another matter. And so what I will say is on the record is, you know, I understand that there is an I -card. And again, an I card means someone is being held as a suspect on a matter. For Mr. Smith on this case, he is represented by counsel. He is not to be questioned on the substance of the underlying matter. So I invoke their rights. There are all sorts of factual scenarios where you could imagine where someone who's in custody says something to the police, the effect of this person's not my attorney or I want to talk to you. But it would have to be, I think, a very clear and unambiguous sort of invocation of that. It would have to Be spontaneous, it would have to be one where it wasn't the police initiating con, you know, the sort of contact or asking questions. And I think also the police would, before even initiating any sort of interrogation, really be required to speak to the person who purports to be the sus, you know, the suspect or defendant's attorney.

0:41:55 Liz: Um, that would be my understanding before, you know, you not allowing this. So it would be such frankly in a long and sort of attenuated process. I think it would make it challenging for this person to ultimately give a statement.

0:42:06 Matt: I mean, that's what you're going to do when you show up anyway is it's going to be, hey, I'm Liz. My client's not talking. You wouldn't be much of an attorney if you were doing anything else. Makes sense. I did want to mention before we wrap up here, in Vega v. Tico in 2022, just an interesting question. Now, of course, I think before. Section 1983 and Bivens rights, which are your different ways that you can sue state and federal officials for their violations of your civil rights. This is basically dead, if not completely on life support, brain dead at this point. But 2022 is an interesting sort of test point on that because in that case, you had somebody who was in the hospital who was accused of having inappropriately touched a hospital worker. And the police came and got a written apology out of him for having done this. And without Mirandizing him, they just had him write apology. He eventually was acquitted and he sued under 1983 as a violation of his rights by a state actor because they hadn't Mirandized him. And I think it's interesting in that case because it does seem like a real signal of what this court as of 2022, and this is an Alito opinion, what

0:43:10 Matt: They think about Miranda. He's very careful to say, unlike Rehnquist, I think he's more direct about this and saying that it's prophylactic, that it's not necessarily a constitutional violation because it's a rule. It's not a constitutional ironclad guarantee in the the same way. It's a prophylactic rule that's supposed to protect you. It is not the same as police busting down your door and breaking into your house without a warrant or beating you up or shooting your dog or all the other things that people sue under 1983 or Bivens for appropriately. I am interested just sort of as a signpost, because that was the latest Miranda case that I could find. It was 2022. I don't know if you were aware of anything more recent. Because of course, the big question is not what Rehnquist would do or what Earl Warren would do, but of course, what Alito would do at this point because he is running the country.

0:43:52 Matt: Maybe not the best example because it is a civil 1983 case where they're trying to sue for damages. But I thought it was an interesting kind of signpost about what they think about where things are going.

0:44:02 Liz: Well it absolutely is. Right? And you have, you know this kind of back and forth as to whether or not Miranda is quote unquote a prophylactic rule or whether it's a real constant, it's constitutional rule. Right, right? And you've got Rehnquist and Dickerson saying, no, this is a constitutional rule.

0:44:16 Matt: We met at the first time.

0:44:17 Liz: Congress cannot overrule it. And then you definitely have, and you 100 % have Alito saying, no, no. All the time we describe it as prophylactic. Sorry, you don't get any Bivens rights here. Of all the things this court has done, overturning Miranda would be not even whatever. I actually just don't think that they have the particular appetite for it because I don't think there's a, I mean, again, there's just not a massive demand for this in the law enforcement community.

0:44:34 Matt: Yeah, a footnote now at this point. Yeah right right. Makes

0:44:47 Liz: The law enforcement community has come to terms with Miranda and I think even sees the benefits of Miranda.

0:44:52 Matt: A lot of sense actually and this is a really interesting because you know in this series we've been trying to look at Warren court cases because the Warren court stands as the only time in U.S. history when we've had a liberal majority and we get to see what you know progressives might actually do with the court. Miranda was, I think, arguably kind of the height of the idea of a court -made rule of the court saying, you know, here's a script. They didn't actually give them a script, but that's the way they took it. Here's a bunch of stuff that has become sort of inscribed into the American psyche, right, into the zeitgeist. Like, we all know this script. This was not in the Constitution, and there isn't necessarily even a Fifth Amendment right to counsel that's immediately apparent. They just sort of came up with all this stuff. I loved what you said about but Rehnquist is still defending it. And even if Alito's trying to chip away at it, it is interesting to close here and think about the fact that this seems like it's going to be held up for quite a while. As you said, there's no appetite. Congress made its shot at trying to overturn it. And a fairly conservative court found that this wasn't something they wanted to overturn just before they installed George W. Bush as the president. So, you know, it goes to show, I guess. We can be hopeful that at least this right, this basic principle that we have, that you have to be told about your constitutional rights including your Fifth Amendment right to counsel. Seems like it's not going anywhere.

0:46:05 Liz: It seems like it's not going anywhere.

0:46:07 Matt: Good news.

0:46:08 Liz: I think it's a good thing, but I also wouldn't overstate the importance of Miranda, so. And I think that's kind of where, as I say, that's where I would just sort of land on that. And again, it's a somewhat cynical view, but it is a view. And, and I think the last thing that I would just say is the world of voluntariness analysis without a bright line rule like Miranda, even though these are analytically separate things, is not a world where I think the Supreme Court necessarily wants to return to because it just would generate a lot more opinions, a lot more analysis, a little bit more, a whole lot more, and I think that's kind of the other thing I would just add.

0:46:39 Matt: A mess. Yeah.

0:46:49 Liz: We'll see. I mean, who am I to predict really anything these days? I will say, for listeners to note one prediction I made that did come back, which is listeners may remember Luigi Mangione. I talked to Matt when I saw the terrorism charges come down. And I said to him, which I know he cited me on the podcast, thank you, Matt, saying that a good judge, and Luigi is in front of a good Judge in New York State Court, was likely to potentially dismiss the terrorism challenges. And that, in fact, happened on the state level. Yeah, I mean, I'm making in the federal level. He's still in a lot of trouble, a world of trouble.

0:47:22 Matt: On the state level, at least. Who knows? Sure, sure.

0:47:30 Liz: I'm in no position to make any predictions anymore, because things have just really gotten too crazy for me. But there's no particular appetite, it seems to overturn Miranda here. Maybe the Supreme Court will just run out of other things to overturn. So you know, just gets it and maybe that's where we'll get. And so like, why not Miranda at this point, but we'll see.

0:47:47 Matt: That is really interesting. Just as we're going out here, just to repeat that, that this is kind of one of the ultimate judge -made Warren court, super liberal golden era decisions that isn't going anywhere because it just actually does work for everybody. This is exactly why I wanted to have you on to talk about it because we could talk to law professors, but why not talk to somebody who's actually going to night court and talking to people all day who are actually dealing with the NYPD? That's exactly the person I want to talk to. And just the kind of person we always want to have on OA. So always great to talk with you, Liz. Really appreciate you coming on to talk about this stuff and taking the time to read up on something you always already have to think about all day.

0:48:25 Liz: It was a real pleasure to come and join you guys. And if I can just I know all of our OA listeners are so educated on this point, but I will just say it one more time. If you ever find yourself in a circumstance with the police and they're questioning you, ask them, am I free to leave? If they say that you are not, tell them you want a lawyer. That is it. You can tell them you want to invoke your right to remain silent, but remember they can come back and bug you later. A lawyer, you have 14 days. So that's how you should proceed.

0:48:53 Matt: You don't have a constitutional right to a dog. So you could ask to bring your dog to the station, but do not ask for a lawyer dog. That is what I've really learned here.

0:49:01 Liz: Do not ask for a lawyer dog. Dog as as much as like now that's again, that's all I want to do now. But don't ask for a lawyer dog.

0:49:07 Matt: Absolutely not. I would like to live in a country where you do have a constitutional right to have a dog present during your interrogation just to pet, but we're not there. That's a much better country.

0:49:15 Liz: Maybe ask for a lawyer and a dog.

0:49:18 Matt: There you go. And a dog, yes. Make sure there's a very important injunction there. Okay, great. Well, good to talk to you. And I'm sure we'll be talking again about more criminal stuff sometime soon. We'll see you.

0:49:27 Liz: Good to talk to you. Don't ever forget the lawyer dog.

0:50:07 Matt: You don't have a constitutional right to a dog.