Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

GEORGIA LEGISLATURE CHANGES MUGSHOT LAWS

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A few months ago  we talked about the legality of having your mugshot posted all over the internet (see: Georgia Mugshot Websites). Recently, the Georgia General Assembly took another hard stance against companies who prey on those who are booked through Georgia jails.  Our legislature made some drastic changes to the Georgia mugshot laws.

Georgia law now requires that law enforcement agencies refrain from posting booking photographs on their jail inmate website.  The General Assembly went on to limit access to any booking photographs by restricting access to those who are (1) not using the photo for purposes for written publication or website publication; and (2) the person trying to obtain the photograph is not asking for removal or deletion of the booking photograph in exchange for money.  Law Enforcement agencies now can only release photographs to individuals who sign a statement affirming that the use of the photograph will NOT be for purposes of mugshot websites.

The General Assembly obviously recognized there was a serious problem with websites extorting those who have been booked through the criminal process.  Already, the Cobb County Sheriff’s Department has taken steps to remove all photographs from their jail website in accordance with the new law. Hopefully, these steps will put an end to for profit mugshot websites.

Please contact our office today at 404-581-0999 if you have been arrested in Georgia and you need help getting your mugshot removed.

How do I get a bond?

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If you or a loved one has recently been arrested, the first thing on your mind is getting out of jail.  Unfortunately, the process of bonding out is more complicated than expected.  So, what do you need to know to get out of jail as quickly as possible?

1)      Will I get a bond?  If so, when?

In Georgia, the rules are organized according to whether the arrest offense is a felony or a misdemeanor.  If it is a misdemeanor, then you are entitled to a bond by law.  If the charge is a felony, then it is in the judge’s discretion whether to grant bail.  There are certain serious offenses for which only a superior court judge can grant bail.  In that case, the superior court will be notified of your arrest within 48 hours.  The superior court is then required to set a bond hearing within 30 days after receiving the notice.  However, if you file a petition for a bond, then the hearing must be held within 10 days after receiving the petition.

2)      What does the court consider when determining whether to grant bond and when determining high the bond should be? 

Judges consider four factors when determining whether to grant bond, and when determining how much the bond should be: (1) Are you a risk to run away and not come back to court?; (2) Do you pose a threat or danger to people or property in the local community?; (3) Is it likely that you will commit a felony before your case is resolved?; and (4) Are you likely to intimidate witnesses against you?

3)      Once I get a bond, what are my options for covering the amount? 

Cash bond – This requires you to put up the entire bond amount in cash or by money order.  Most people cannot afford the entire amount, and that is where bondsmen come in.  As long as you are able to pay 13-15% of the bond, then a bondsman will put up the money for you and require that you pay a fee.

*The money that you pay to bond out will be refunded at the close of the case as long as it is not forfeited by your failure to appear in court.  The fee to the bonding company will not be refunded. 

Property bond – You may be able to put up real property (house or land) as a way to guarantee your appearance in court.  Generally, you must have enough equity in the home or property to cover the amount of the bond.  In some places, you have to have twice the amount of the bond in equity.  Most bondsmen will still help you bond out of jail, and they may accept more than just real property.  For example, some will allow you to put up the title to your car as a guarantee that you will return to court.  Remember, if you use property to bond out and you fail to appear in court, then you are at risk of losing that property!

If you or a loved one have recently been arrested and want help bonding out, do not hesitate to contact us at 404-581-0999. You can trust that our firm will do everything possible to get you or your loved one out of jail and to make the process as simple and painless as possible.

During jury selection, the prosecutor cannot make remarks which would prejudice the panel. Doing so, requires the panel to be excused under a challenge to the poll.

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NEW CASE just published

Bell v. State, A11A0118 (July 5, 2011).

Following his 2005 conviction for rape, defendant appealed from the denial of his motion for new trial.

During voir dire, the panel member stated that he had heard of a person named James Bell who was accused of a previous sexual assault in another county, and asked if it was the same person because the victim in that assault was his grandmother.

The State responded: “Your grandmother is [name omitted]?” To which the juror responded: “My grandmother is Ardella [name omitted].”

When questioned if he knew James Bell, the juror responded that he did not, but wondered if it was the same person.

The State then responded: “I can’t go into the past. That’s what the judge was getting at and that’s what I’m getting at. We can’t talk about what happened in the past, just talking about today.

The juror was then asked whether his relationship with his grandmother would affect his ability to be fair and impartial, he responded that “I would hope so. I guess I could because I don’t know James Bell. I can’t say that I know him.”

Defense counsel requested to approach and moved for a mistrial.

Although the motion for mistrial was premature – the proper procedural tool for the defense to have used was either a “challenge to the poll” or a motion for a postponement to impanel other jurors who had not heard the remark. However, regardless of the label which defense counsel placed on his motion, his import was clear, i.e., that the prospective jurors had been prejudiced by the remarks and that the appellant was entitled to a new panel from which to choose a jury to hear his case.

The law in Georgia provides “[w]hen a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.”

Due process requires “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.”

Here, although the prospective juror at issue said he was not sure if the defendant was the same James Bell accused of raping of his grandmother, rather than leave the questioned unanswered, and move on to another juror, the State elicited more information from the juror. Specifically, the State asked if the juror’s grandmother was ” [name omitted]” thereby providing the other prospective jurors with the name of another alleged rape victim in a crime for which Bell was not on trial.

This comment by the state was inherently prejudicial and deprived Bell of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.

Because the trial was tainted from the beginning, Bell’s conviction was reversed.

Sometimes it is good to be the thief

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An Office Depot in Fulton County had video and still photographs, clearly showing Fields’s unobstructed face and body from several angles, stealing laptops. Fields’s features, which matched those of the man in the video, were described by the interviewing officer who identified Fields in the courtroom. Two witnesses testified that Fields appeared to be the man in the video, and the State itself urged in closing argument that Fields was the man stealing the laptops in the video.

Thus, the uncontroverted direct evidence that Fields was the original thief, the State’s closing argument that Fields was the original thief, and the fact that “no evidence identified any original thief other than.

Fields was later arrested and charged with, among other things, theft by receiving (one count for each laptop).

Under OCGA § 16-8-7 (a), [a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

The Georgia Supreme Court has explained this offense as follows: “The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief. An essential element of the crime of theft by receiving is that the goods had been stolen by some person other than the accused.” The State correctly pointed out that it has no burden to prove that the accused did not steal the goods if the principal thief is unknown, but this does not change the fact that if direct and uncontested evidence identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.

FIELDS v. THE STATE, 2011 Ga. App. LEXIS 585, July 1, 2011