Miranda v. Arizona, 384 U.S. 436 (1966) is commonly misunderstood. The statement of the accused may be used at trial so long as the accused was not in custody and also not protected from waiving the right to remain silent. This rule is subject to exceptions and the effect of this rule may be changed by other rules. The point I am trying to make is that to have a Miranda violation, you have to have the accused being (1)questioned while in (2)custody. If a person runs up to a strange cop on the beat and the cop asks "What's the matter with you? Did you do something wrong?" and the cop does nothing to indicate that the person has to stay to talk, and the person confesses to a crime, then that what the person says can be used at trial. Why? No custody. Another hypothetical: a person is arrested for overdue traffic tickets. That person speaks no English and none of the arresting officers speak the arrestee's language. They put the arrestee in a cell while they look for a translator. While waiting in jail, unable to communicate with anyone, he uses toilet paper to write out a murder confession in the language that none of the cops can figure out. When a translator is eventually found, Miranda does not keep this confession from being used at trial. Why? No questioning.
One more thing- Miranda warnings are not required for videos of the accused to be introduced showing that defendant couldn't walk or hit somebody. It's not needed for handwriting samples. It's not the reason warrants are sometimes required for blood samples. Thanks for Jamie Spencer of the Austin Criminal Defense Lawyer blog for pointing out the broad popular misunderstanding of Miranda.
About Me
- Bob Mabry
- Civil appellate, criminal appellate, and criminal trial lawyer at 704 North Thompson Street, #157, Conroe, Texas 77301-2578, (936) 494-1393.
Saturday, May 8, 2010
When You Are Away from Home and Need a Texas Criminal Jury Charge in a Hurry
Harris County has criminal jury charges on the internet. So if you were in a tight but could get to the internet you could access them from anywhere you could get on the net.
Wednesday, May 5, 2010
Chicago Manual of Style 16th Edition Comes Out September 1, 2010
This book is a necessity for properly cited legal writing. If you can put off getting your manual until after September 1, 2010. If you can't, I get a cut if you buy your 15th edition .
Law Enforcement Questioning Strategy re Shahzad
This post would be particularly interesting for criminal law amateurs. I'd feel better if the best law enforcement interviewer I have ever personally worked with-- Susan Maxwell of the 23d District Court's District Attorney's Office-- were working it.
Tuesday, May 4, 2010
Texas Court of Criminal Appeals Says State May Limit Corporate Political Contributions
Texas’s highest noncivil tribunal unanimously decided that the ban on political contributions was constitutional. Defendants James W. Ellis and John D. Colyandro challenged the money-laundering statute— that it doesn’t apply to checks— by a pretrial writ of habeas corpus. The CCA held that the challenge to the latter statute was premature.
When the Supreme Court of the United States considers whether campaign contributions and independent expenditures on behalf of a candidate are constitutional to regulate, it treats them differently. That court is willing to regulate the contributions but not those independent expenditures. The first is a regulation of the way money can be given to candidates; the latter is held to be regulation of political speech, the main thing that the first amendment's speech protection is supposed to protect. In Citizens United v. Federal Election Commission, the court held that the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.
SCOTUS said that corporations are entitled to first amendment protection because they are simply "associations of individuals." If one cannot limit an individual's independent expenditure, then one cannot limit expenditures made by associations of individuals. However, if one can limit an individual's contributions, as in Buckley v. Valeo, then laws can be enacted to prevent associations of individuals from being used to circumvent those contribution limits, like Texas's law. Moreover, corporations in Texas have many ways to engage in political speech: it's not like they're gagged. Citizens United is not implicated by Texas's regulations of the forms for corporations' contributions.
Generally,pretrial habeas cannot be used to attack a charging instrument's sufficiency nor can it be used to construe the meaning and application of the statute defining the offense. It can be used to advance a claim that a statute is unconstitutional on its face, but not that a statute is unconstitutional only because of how it is applied. This is because only a trial can show the facts of how the statute is applied. It's too early.
When the Supreme Court of the United States considers whether campaign contributions and independent expenditures on behalf of a candidate are constitutional to regulate, it treats them differently. That court is willing to regulate the contributions but not those independent expenditures. The first is a regulation of the way money can be given to candidates; the latter is held to be regulation of political speech, the main thing that the first amendment's speech protection is supposed to protect. In Citizens United v. Federal Election Commission, the court held that the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.
SCOTUS said that corporations are entitled to first amendment protection because they are simply "associations of individuals." If one cannot limit an individual's independent expenditure, then one cannot limit expenditures made by associations of individuals. However, if one can limit an individual's contributions, as in Buckley v. Valeo, then laws can be enacted to prevent associations of individuals from being used to circumvent those contribution limits, like Texas's law. Moreover, corporations in Texas have many ways to engage in political speech: it's not like they're gagged. Citizens United is not implicated by Texas's regulations of the forms for corporations' contributions.
Generally,pretrial habeas cannot be used to attack a charging instrument's sufficiency nor can it be used to construe the meaning and application of the statute defining the offense. It can be used to advance a claim that a statute is unconstitutional on its face, but not that a statute is unconstitutional only because of how it is applied. This is because only a trial can show the facts of how the statute is applied. It's too early.
An Interesting Post on State Court Standards of Review of the Right to Bear Arms
A comparative review of state court standards of review might shed light on individual
state's standards, such as Texas's. A blog post about that is here.
state's standards, such as Texas's. A blog post about that is here.
Subscribe to:
Posts (Atom)