August 28, 2012 by Cold Case Squad
By: Joseph L. Giacalone
In A Quick Guide to Miranda for Crime Writers Part 1 I talked about how the writer would handle Miranda issues. In this post we’re going to discuss how to write a scene involving a lawyer and his client.
Here is the typical interrogation / lawyer scene that has been played out ad nauseam on television and in the movies: The lawyer barges into the interrogation room (“The Box’) and states, “I represent Sam Smith. Is my client under arrest? No, then we will be on our way.” Not in the real world.
In order for a suspect to need a lawyer, there must be Interrogation + Custody. When both are present, the police must read them their Miranda Warnings from a prepared card or use simple language to convey the Miranda Rights (Duckworth vs. Eagen 492 U.S. 195 (1989)). In order for a suspect to invoke their right to counsel, they must clearly and unambiguously ask for one, “I want a lawyer,” not, “Maybe I should speak to a lawyer (Davis vs. United States, 512 US 452) (1994))?”
Here is where the tricky part comes in for writers. What happens when a family member or friend obtains counsel for someone else? What happens when the lawyer calls the police station? Unlike television, defense attorneys and prosecutors aren’t assigned to police precincts. These situations are handled differently depending on decisions made by state supreme courts. A writer must know what rulings and laws apply specifically to their settings to give their fiction a “real feel” to it.
According to how the Miranda Rights were written, the individual themselves must invoke their right to counsel-no one else can do it for them. So, if the suspect doesn’t ask for a lawyer, the lawyer will not have access to their client. Not if they call, not if they show up, etc. It is not the job of the police to inform you that your sister retained counsel on your behalf. Just like television, right? This was upheld in the U.S. Supreme Court Case, Moran v. Burbine 475 U.S. 412 (1986). However, many jurisdictions have made the decision to provide more rights for their residents. Remember, a local government cannot overrule the federal government, but they can make it more stringent.
Michigan, Florida, Illinois and New York City have ignored Moran vs. Burbine and instituted an additional layer of protection. For instance, in New York City, if a lawyer contacts any police station or any police officer (even if the suspect is not being held there), it is considered that you have been notified and all questions must cease, or any statements made after the call will be inadmissible.
Want to do research on a court case and don’t know how or where to look it up? I will use the Moran case from above to show the breakdown of how and where to find it:
Moran (P) vs. Burbine (D) – Plaintiff vs. Defendant (P vs. D)
475 – Is the volume number of the law report the decision was published in
U.S. United States Report
412 – Is the page number in volume 475 where the information is published
1986 – Is the year the decision was rendered in
For more information or crime writing assistance you can follow Joe on Twitter @JoeGiacalone
Joe Giacalone is a retired Detective Sergeant and former Commanding Officer of the Bronx Cold Case Squad that has investigated hundreds of homicides, cold cases and missing persons.
He is the author of the Criminal Investigative Function: A Guide for New Investigators published by Looseleaf Law Publications, Inc.
To find out more about Joe or his book, please visit Cold Case Squad.