Call to Set up a Consultation 205-931-3463


Shelby County Alabama Lawyer's Tips of the Week--Miranda Warnings and The Exclusionary Rule

Posted by Erik Fine | Jul 15, 2020 | 0 Comments


Shelby County Alabama Criminal Lawyer's Tips

We continue our series on the Bill of Rights and Patriot Lawyering by focusing on the Fifth Amendment to the Constitution. The 5th Amendment is perhaps one of the greatest criminal defense right's ever codified into law.  It states: 

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." 

 Most notably, the 5th Amendment protects a criminal defendant by requiring a grand jury indictment for felonies (any crime that the potential for jail exceeds a year and one day).  The 5th Amendment prohibits the government (state) from endlessly trying a criminal defendant multiple times for the same offense.  It also protects against self-incrimination.

The Fifth Amendment is often thought of as the right against self-incrimination, but there's much more to it than that. It's also the Due Process Amendment. You cannot be sent to jail or have your property taken for no reason, though asset forfeiture and red flag laws have greatly undermined this. You cannot be forced to testify against yourself. Additionally, you cannot be tried twice for the same crime.  This is known in the law as Double Jeopardy.

The fact is that sometimes guilty people go free, and that's not a mistake. Indeed, the Founders considered it of paramount importance that it be difficult to convict people of crimes and send people to jail.  Benjamin Franklin is famously known for making the statement that "it was better for one hundred guilty men to escape justice than for one innocent man to be falsely imprisoned."   Benjamin Franklin, Letter to Benjamin Vaughan, March 14, 1785. 

We have all heard of the instances where a local government has seized private property (and supposedly paid a fair market value for the land) from an individual to build a road or construct a public facility that was intended to serve some compelling public interest.  There has even been instances in my lifetime where private lands were seized by the government and then sold to private developers to build a shopping center or sports stadium!  I can understand the building of roads for public use or the construction of a city park, but I have a hard time with accepting the use of eminent domain in order to line the pockets of private developers and personal profits.

Miranda Warnings

The Miranda warning refers to the constitutional requirement that once an individual is detained by the police, (NOT free to leave on his own accord) there are certain warnings a police officer is required to give to the detainee.

Miranda v. Arizona

The requirement to give Miranda warnings came from the Supreme Court decision, Miranda v. Arizona, 384 US 436 (1966) In Miranda, the Supreme Court held that a defendant cannot be questioned by police in the context of a custodial interrogation (being held in police custody and NOT free to leave) until the defendant is made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent (he cannot afford an attorney). 

Invoking Your Miranda Rights

If the individual indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent, the interrogation must cease. If the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him or her present during any subsequent questioning.

It is important to note that police are only required to Mirandize a suspect if they intend to interrogate that person while in physical custody. Arrests can occur without the Miranda Warning being given.  An example of the would be a DUI (the officer is witnessing the offense himself).  Since the officer witnessed the alleged crime occur, he will be able to provide adequate and admissible testimony (subject to cross examination by defense counsel) at trial.  If the police later decide to interrogate the suspect, the warning must be given at that time. Their vigilance to this rule means less chance of a case being overturned in court due to poor procedure on their part.

If public safety is an issue, such as an ACTIVE SHOOTER at a shopping mall, questions may be asked without the defendant being Mirandized in order to immediately protect the general public IMMEDIATELY.  For example, if the officer detains a suspected active mall shooter and asks of the suspect, "where is the gun??"this evidence obtained may be used against the suspect under these circumstances. 

When a person is being booked into jail and Miranda has not been read to him, the answers to general questions such as the defendant's name and address and date of birth do not require that Miranda be read to the defendant prior.

Given the repeated abuses of Miranda by the police and the courts' unwillingness to recognize our Fifth Amendment rights, the best solution would be to require the presence of defense counsel prior to any interrogation by the police.  Patriot Lawyers must stand up for our rights in ALL CIRCUMSTANCES.  

Exclusionary Rule

Many people have heard of The Exclusionary Rule, but really don't know what this rule entails.  Simply put, if the government obtains evidence illegally (by violating a civil right stated or established from case law surrounding the Bill of Rights), that illegally obtained evidence is EXCLUDED (NOT allowed to be used in court by the state in order to prosecute a criminal defendant.  It means that the illegally obtained evidence is thrown out.  AN example of The Exclusionary Rule being implemented by a criminal defense attorney would be obtaining a confession in a felony case from a defendant without first making the defendant aware that he has the right to not make such a statement, has the right to speak to a lawyer regarding his charges, to have that lawyer present during any and all questioning by the police, and if the defendant cannot afford to hire an attorney, to have an attorney provided to him (at the expense of the state) to represent him.  Another example of an Exclusionary Rule violation would be  physical evidence obtained in an illegal search of a defendant's house or vehicle.  Both interrogation and custody are required prior to a Miranda Warning being required.  The famous case of Mapp v. Ohio, 367 U.S. 643 (1961) established the Exclusionary Rule in the United States.  This case surrounded an illegal search of a house where illegally obtained evidence was discovered and used against the defendant in a criminal case.

When evidence is obtained illegally by the police, IT DOES NOT MEAN THAT THE CASE IS DISMISSED AND THAT THE DEFENDANT GOES FREE!!  It means that the SPECIFIC EVIDENCE THAT WAS ILLEGALLY OBTAINED IS INADMISSABLE....but a prosecution of a defendant based upon other LAWFULLY OBTAINED evidence can continue.  That means that once the illegally obtained evidence is thrown out, if there is enough admissible evidence remaining that is not related to the illegally obtained evidence, a trial may proceed based upon only the admissible evidence.

 I wrote a blog previously that you will most certainly find to be quite informative on the subject in this blog.  Read


About the Author

Erik Fine

Attorney Erik D. Fine, A.A., B.S., J.D. Mr. Fine, an Alabama native, is a graduate of Mountain Brook Public Schools. He received an athletic scholarship to play baseball at Kansas City Kansas Community College from which he graduated with an Associates Degree in Law Enforcement in 1989. It was i...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Why Patriot Law Firm, LLC

Put attorney Erik Fine, an American Patriot and staunch defender of our Constitutional Rights with years of law enforcement experience and successful legal representation to work for you today. Like our forefathers, attorney Erik Fine will fight for your rights against oppression with passion, dignity, and unmatched relentlessness.