FAQ

I wasn’t read my rights. Can my case be thrown out?

The best answer is, maybe. Many people are under the impression that, like on TV, rights must be read in every case. This is inaccurate. Every case must be evaluated independently, but there are some basic concepts that apply to every situation.

Miranda rights comes from the U.S. Supreme Court Case, Miranda v. Arizona (1966). When there are conflicts in laws or issues of great public importance, the U.S. Supreme Court can agree to hear the case. The opinions from such a case become the law by which we operate. In the Miranda case, the issue related to statements obtained from a person being interrogated. From that case came what we know as Miranda rights – the rights that are read to an accused prior to an interrogation.

If a person is arrested and there is no interrogation, there is no need for Miranda rights to be read. If a person is arrested and an interrogation takes place, then Miranda rights are required. What is an interrogation? It is questioning. It can be formal questions at a police station, in an interrogation room, that is recorded. Or, it can be more informal questions at the scene of a crime. There are no interrogations formalities required for Miranda to be read.

What are the Miranda Rights and how are they read?

You have the right to remain silent. This is your Constitutional right. Anything you say can and will be used against you in court. You have the right to an attorney before OR during questioning. You have the right to stop the statement and ask for an attorney. And, if you cannot afford an attorney, one will be appointed to you.

How are Miranda Rights read?

It depends on the agency, the officer and the circumstances. There are times when rights are provided from memory by the officer. There are times when the rights are read off of a card the officer carries with them. And, there are times that the rights are printed on paper and the person giving the statement is required to initial and sign the form prior to questioning.

What if you give a statement and no rights were read?

The answer depends on the case. Some cases can survive if a statement was taken in violation of Miranda. Some cases will be thrown out if the statement was not properly taken. Once you hire an attorney, the case is analyzed to see if a motion to suppress would be appropriate for the case. A motion to suppress is a legal motion, filed with the court, that points out deficiencies in the statement. It can allege that the Miranda rights were not read, that they were read improperly, that the person who gave the statement didn’t or couldn’t understand the rights (think – intoxicated or mental incapacity), or a number of other reasons. It is important to consult with an attorney well-versed in the law to accurately advise you as to your rights.

Do I need a lawyer?

In short, yes. Would you want to enter the boxing ring against a trained fighter without anyone in your corner, without expertise, without practice? Of course not. Court is the same concept. When you have charges against you, the prosecutor will be experienced in presenting the law and arguing their case. You should absolutely seek legal counsel.

What is the difference between a felony and a misdemeanor?

There are different levels of crimes in Florida. The punishment dictates the level of the crime. There are Second Degree Misdemeanors (maximum punishment is 60 days County Jail/6 months probation), First Degree Misdemeanors (maximum punishment one year County Jail/12 months probation), Third Degree Felony (maximum punishment 5 years State Prison), Second Degree Felony (maximum punishment 15 years State Prison), and First Degree Felony (maximum punishment 30 years or up to Life depending on the crime). These are simplified maximum sentences. To understand your exposure, seek legal counsel. There are additional factors that can elevate the punishment of a crime and reclassify the level of the charge, such as Ten-Twenty-Life – the firearm statute in Florida. Speaking with a lawyer highly trained and experienced in criminal defense is essential.

What is an arraignment?

An arraignment is the first appearance in court following the filing of a case. In some jurisdictions, an arraignment is set prior to filing and the accused learns whether the State is pursuing charges. At an arraignment, the Judge informs the accused of the charges pending and discusses whether the accused has an attorney or needs time to secure counsel. At this time, typically a plea of Not Guilty is entered unless already done so in writing by counsel.

What are the stages of a criminal case?

Criminal cases can take many twists and turns. No two cases are handled the same way. The facts of each case, the client, the prosecutor, the judge – these are all factors to consider in the strategy in defending a criminal case. All cases begin with the law enforcement investigation stage. Some cases then result in an arrest, while others are referred to the State Attorney’s Office for review and determination if a case should proceed. From there, the case heads to court for the arraignment process. The case then enters the discovery phase – consider this as information sharing where the prosecution is required to turn over their witness list, police reports, audio recordings, records, photographs, videos – the list goes on. Part of discovery phase is the taking of depositions. Then, depending on the strategy for the case, it may be prepared for a negotiated plea deal with the prosecution, or prepared for a plea to the judge, or for trial. In the interim various motions may be filed (motion to dismiss, motion to suppress, motion to compel, motion to inspect).

What is Grand Jury?

In Florida, the Grand Jury hears the facts and evidence in certain cases and determines if a case should move forward.