Tuesday, April 13, 2010

Pre-arrest silence may not be used against you.

Often times people do not apply the Miranda warning properly in their discussions. Some believe that Miranda warnings must be read before law enforcement may arrest you. This is not the case. Miranda only applies to in custody statements. If you are in custody and law enforcement questions you without first reading Miranda, your statement may then be thrown out. However, if there is enough other evidence to suspect you of the crime, the arrest will still stand.

There has often been the question, what happens if I remain silent, or do not answer an investigators letter or questions before I am arrested? May the prosecutor use that silence to imply my guilt? While the Defense bar was adamant that the Constitution protects a person's Right to remain silent at any time, Prosecution often argued that since Miranda only applies to statements while in custody, you do not have the Right to remain silent before an arrest.

The Minnesota Court of Appeals just clarified that the Constitution does protect your right to remain silent at all times, not just when you are actually arrested. Both the Minnesota and United States'Constitution guarantees a criminal defendant the right to remain silent. US Const. Amend. V; Mn const. art. I sec. 7. Admitting evidence of defendant’s silence could deprive the defendant of a fair trial. State vs. Borg (Minn. Ct. App.), A09-0243, March 15, 2010.

It is possible that the silence may be used for impeachment purposes. However, the silence may not be used in the State's case in chief. If you are accused of a crime, you will want a lawyer to walk you through when your statements, and or silence, may be used against you and when those same may not.

For a free consultation with an experienced lawyer that will aggressively represent you, contact:

Patrick Flanagan

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