How did he get off?

By Shannon

“He got off on a technicality!”  We’ve all heard this phrase and been furious at its implications.  What does it mean and why are there so many darn technicalities?

Getting off on a technicality means that the defendant’s Constitutional rights were violated during an investigation.  For example, we’ve all heard Miranda warnings on TV shows.  I’m sure 99.99% of you can say the warnings by heart.  All defendants gripe when they aren’t given their Miranda warnings, but officers are not always required to read the well known poetry.  The only time warnings have to be given is when the suspect is BOTH in custody AND being interrogated. 

If you go to the police station, sit down in an interview room, are told you can leave, and then you’re asked questions, the officer does not need to read you your rights.  Your statements can be used in court because you were NOT in custody when you said them.  The reverse is true as well.  If you are in custody, but officers are NOT questioning you, the officer still does not need to read you your rights.  In that case, if you blurt out “I knocked down the 105 year old woman and stole her candy!” I as a prosecutor can use it against you in court because you volunteered the information.

“Wait a minute, Shannon!” you say, “On TV they ALWAYS read the bad guy his rights.  Are you sure you know what you’re talking about?”  I’ll tell you what my mom told me when I was little:  “TV is just pretend.”

So if the equation is so clear that CUSTODY + INTERROGATION = MIRANDA how could anyone ever get off on this technicality?  It is because lawyers get paid to make things difficult and incomprehensible (pick up any statute book for proof).  The next questions lawyers ask are:  “What is custody?” and “What is interrogation?”  Unfortunately the law doesn’t tell us.

 Pic at www.palosheights.org

Officers may detain anyone for a short amount of time without having to read the Miranda warnings.  Think about when you are stopped for speeding.  Does the officer read you your rights before he talks to you?  No, of course not.  You have no right to hear your Miranda warnings when you are merely detained.  However, if the officer is overwhelmed by a cloud of marijuana smoke when you roll down the window he may order you out of the car and one of three things may happen:

1.  The officer handcuffs you “for officer safety” (a magical phrase I’m sure Ann will discuss at some point), searches your vehicle while asking questions, and doesn’t read you your rights.  NO custody = NO Miranda needed

2.  The officer handcuffs you and tells you are under arrest.  The officer decides not to question you and therefore will not read you your rights.  NO interrogation = NO Miranda needed

3.  The officer handcuffs you, reads you your rights, then if you agree to talk anyway, the officer will question you.  CUSTODY + INTERROGATION = MIRANDA

All three of these scenarios are legal and there should be no technical violation.  Technicalities occur when a defense attorney is hired.

Cartoon by www.stus.com

 Defense attorneys argue things like:

In scenario number 1 the search took more than 90 seconds and you were handcuffed the whole time which is against you’re religion and made your shoulder and big toe hurt and therefore there was CUSTODY along with the interrogation and no Miranda.  If the Judge agrees, the Defendant walks on a technicality.  By the way, the courts don’t tell us how long you can detain someone before it crosses the line into an arrest, so officers have to guess at what the judge will find “reasonable.”  90 seconds should be reasonable, but you’d be amazed at what defense attorneys will waste time arguing.  (It’s these types of arguments that clog the system.)

In scenario number 2 even though the officer says she didn’t question you regarding the case, she did ask you if you think (like she does) that the cloud in the sky looks like a frog leaping over a cow (because her favorite pastime is imagining things in clouds).  The defense attorney will argue that that counts as INTERROGATION along with the obvious custody, but no Miranda.  If the Judge agrees, the Defendant walks on a technicality.  It doesn’t matter that your response to the question about the cloud was to confess that you just killed your mother, her pet frog, and your sister’s cow.

Scenario number 3 gives a defense attorney little to argue, so they will probably start arguing that the search of the car was illegal even though it wasn’t.  (They really love wasting time.)  However, searches are a topic for another day.

Constitutional protections are very important.  As a prosecutor I’m always worried about accidentally putting an innocent person into prison, so I respect the protections.  I won't accept cases that I think violate Constitutional rights.  I also respect the defense attorneys who make meritorious arguments.  Sometimes I miss something that they catch.  Sometimes we disagree, but both arguments have merit so we go to a judge.  When arguments make sense I never mind arguing the point.  However, I think you can see by the above (slightly farcical) scenarios how some defense attorneys can pervert justice and waste time by making ridiculous time-wasting arguments thereby getting their clients “off on technicalities” when judges make incorrect rulings.