Lawyers presence negates Miranda

The Supreme Judicial Court ruled that statements made in the presence of the defendants attorney but absent Miranda satisfied Miranda in COMMONWEALTH vs. WALLY JACQUES SIMON 456 Mass. 280 on March 12, 2010.

The court stated in deciding “A Superior Court judge properly denied a criminal defendant’s pretrial motion to suppress statements he made during police questioning while in custody, without having been given Miranda warnings, where the presence of his attorney during questioning, when combined with the opportunity to consult with the attorney beforehand, adequately substituted for Miranda warnings to safeguard the right against self-incrimination under the Fifth Amendment to the United States Constitution; and where the presence of his attorney during questioning and the opportunity to consult with the attorney beforehand sufficed to protect his right against self-incrimination secured by art. 12 of the Declaration of Rights of the Massachusetts Constitution, in that the omission of Miranda warnings in these circumstances conferred no advantage on the police.
Trooper Michael Banks of the State police approached the defendant, stated that he wanted to talk to him, and pat frisked him; the other officers stood nearby on the sidewalk. The defendant responded that he was speaking with his attorney on his cellular telephone and did not want to talk to police until his attorney came downstairs. A few minutes later, attorney Daniel Solomon approached the group. Banks, who knew Solomon, said that the police wanted to question his client about an “incident in Winchester .” Solomon informed Banks that he and the defendant would go up to his office, and that Solomon would then notify the police whether the defendant would speak with them. Banks gave Solomon his cellular telephone number, and Solomon and the defendant went into the building.
The officers waited nearby in a location from which they could observe the entrance to the office building. Forty-five minutes to an hour later, Banks received a telephone call from investigators who had spoken with the surviving victim at the hospital; Banks was informed that the surviving victim had identified the defendant as the shooter. As two police officers, Trooper Scott McCormack and Detective Paul Deluca, were on their way upstairs to arrest the defendant, Banks telephoned Solomon to see if the defendant would talk to police, and Solomon said that he would. Banks spoke with the two officers who were in the building and told them not to handcuff the defendant yet since he was willing to speak with the police.
The two officers met Solomon at the door to his office and were invited into a conference room. Solomon and the defendant sat on one side of a conference table, and the two officers sat on the other side. McCormack stated that a double shooting and home invasion had taken place in Winchester the previous night, that one of the victims had died, and that the surviving victim had identified the defendant from a photographic array. McCormack, Solomon, and the defendant then conducted an interview in conversational tones; Deluca observed but did not take part in the questioning. Police did not give the defendant Miranda warnings prior to or during the questioning, and Solomon made no representations that he had advised the defendant of the Miranda warnings. The defendant denied that he had anything to do with the shootings and provided an alibi for the time during which they occurred.
Five or ten minutes after the interview began, Banks entered the conference room and asked to speak with McCormack; the two officers spoke privately for a few minutes. Solomon then left the conference room and told Banks that he was ending the interview. Police told Solomon that they were going to arrest the defendant, and proceeded to do so. The defendant was read the Miranda warnings during the booking process at the police station. He filed a motion to suppress the statements made to the police in his attorney’s office on the ground that they were not made willingly, knowingly, and voluntarily because police had not provided him the Miranda warnings prior to the questioning.
We conclude that the presence of an attorney during questioning, when combined with the opportunity to consult with the attorney beforehand, substitutes adequately for Miranda warnings. The central concern of the Miranda Court was safeguarding the right against self-incrimination in the inherently coercive environment of custodial police interrogation. See Miranda, supra at 445-458 (explaining how police interrogation techniques render custodial interrogation inherently coercive). The Miranda warnings are not an independent right, but serve as a safeguard of the underlying right against self-incrimination. See Michigan v. Tucker, 417 U.S. 433, 444 (1974). In the Miranda decision, the Court recognized that warnings are not the only permissible way to protect a suspect’s right against self-incrimination in the custodial setting. The warnings are not necessary when “other fully effective means . . . to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it” are present. Miranda, supra at 444.
The presence of an attorney during interrogation and the opportunity to consult with counsel beforehand are “the adequate protective device[s] necessary to make the process of police interrogation conform to the dictates of the privilege. [An attorney’s] presence . . . insure[s] that statements made in the government-established atmosphere are not the product of compulsion.” Id. at 466. When counsel is present at an interrogation, the attorney can “detect and describe even the most subtle coercive or suggestive influences.” See Commonwealth v. Cunningham, 471 Pa. 577, 584 (1977). The presence of counsel is particularly effective in eliminating police coercion when the defendant has the opportunity to consult with an attorney in private prior to questioning. [Note 8] See State v. Vos, supra at 1263. Because the presence of counsel and the opportunity to consult with a lawyer beforehand, like Miranda warnings, “eliminate[] the evils in the interrogation process,” Miranda, supra at 466, they are a fully effective substitute for the warnings in counteracting the coercion inherent in custodial interrogation.
Our holding today is consistent with the United States Supreme Court’s decision in Dickerson v. United States, 530 U.S. 428 (2000). In Dickerson, the Court reiterated what it had stated thirty-four years earlier in the Miranda decision itself: Miranda warnings are not required where a fully effective substitute is present. The Court explained in Dickerson that, although the Constitution does require a “procedure that is effective in securing [accused persons’] Fifth Amendment rights,” the “particular Miranda warnings” are not constitutionally required in all circumstances. Id. at 440 n.6.

Similar to a case recently decided by the Supreme court, the Supreme Judicial Court refused to adhere to a mechanistic recitation of the Miranda warnings as the only way to satisfy the right under the 5th amendment. Interestingly, although in the minority, certain members of the court would prefer a series of words mechanically recited to the actual presence of an attorney sitting next to the defendant.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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