1. #1
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    Miranda warnings in Virginia

    Does Virginia State Constitutional law have any rulings about Miranda Warnings differing from the regular Supreme Court decision in Miranda v Arizona?

    Does the same custody + interrogation = Miranda Warning still apply? Or does Virginia have tighter standards, such as warnings shall be issued at time of arrest?

    I need to settle a dispute, a "son of a lawyer" claims that Miranda must always be read at time of arrest or it invalidates the arrest.

    I am certain that he is wrong in terms of federal rights but I am reserving a shred of doubt in his favor while I verify any Virginia state con law since I am not from Virginia nor have I ever worked in Virginia (He is from Virginia where his dad practices law).

  2. #2
    Why so serious?
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    Quote Originally Posted by headonstraight View Post
    Does the same custody + interrogation = Miranda Warning still apply? Or does Virginia have tighter standards, such as warnings shall be issued at time of arrest?

    I need to settle a dispute, a "son of a lawyer" claims that Miranda must always be read at time of arrest or it invalidates the arrest.
    While I work for the feds, I've investigated matters that were federal violations and state violations in the Commonwealth of VA. There is no requirement in VA to give Miranda warnings outside what is required in Miranda v AZ, though I suppose it's possible that a department somewhere in VA may by policy require "tighter standards" like what you described (though I've never heard of that being the case anywhere I'm familiar with).

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    Quote Originally Posted by headonstraight View Post
    Does Virginia State Constitutional law have any rulings about Miranda Warnings differing from the regular Supreme Court decision in Miranda v Arizona?

    Does the same custody + interrogation = Miranda Warning still apply? Or does Virginia have tighter standards, such as warnings shall be issued at time of arrest?

    I need to settle a dispute, a "son of a lawyer" claims that Miranda must always be read at time of arrest or it invalidates the arrest.

    I am certain that he is wrong in terms of federal rights but I am reserving a shred of doubt in his favor while I verify any Virginia state con law since I am not from Virginia nor have I ever worked in Virginia (He is from Virginia where his dad practices law).
    He's wrong. It's been hammered to us in the academy Miranda only applies with custody + interrogation.

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    I thought so.

    Reminds of this:

    "Better to keep silent and be thought a fool than to open one's mouth and remove all doubt." -Socrates

    Thanks
    Last edited by headonstraight; 07-03-2011 at 08:25 PM.

  5. #5
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    no required and if said suspect talks on his own free will, it's on him
    dubbed code name: Alien #69

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    define custody+interrogation??

    you can ask anyone anything, but if it is used in court, it must be prefaced with Miranda....if you ask someone a question and they are in "custody"..... you are better safe than sorry to read Miranda....

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    Custody = not free to leave (excluding 4th amendment stops, aka traffic stops or investigative stop).

    Interrogation = asking questions or the functional equivalent.

    Voluntary encounter + questions = no Miranda

    Arrest + no questions = no Miranda

    Federal Miranda guidelines, assuming Virginia is the same as Kimble stated.

  8. #8
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    As long as the perp "believes" he is not in custody, Miranda is not required.

    Someone watching too many episodes of "COPS"?

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    I am 100% in agreement with the posted replies. The following is from a Virginia policy related to the very subject.

    INTERVIEWS AND INTERROGATIONS

    A. Definitions

    1. An interview, as opposed to an interrogation, may be construed as any conversation with a suspect, witness, victim, or the citizen.

    2. An interrogation, to paraphrase the Supreme Court, includes direct questioning (or its functional equivalent) about a crime or suspected crime, as well as any words or conduct on behalf of the police that may elicit an incriminating response from the suspect.

    a. Officers are reminded that an interrogation does not rely solely or exclusively on words; conduct can be the "functional equivalent" of asking questions.

    3. A person is in custody when an officer tells him or her that he or she is under arrest. The functional equivalent of being in custody occurs when a reasonable person in the suspect's place would feel that his or her freedom of action has been restricted to the same degree as a formal arrest.

    B. Rights admonition

    1. In order to achieve uniformity in administering Miranda warnings, police officers shall be issued cards with the Miranda warnings and waiver on them. Before custodial interrogation, officers shall advise suspects of their rights by reading aloud from the card the following:

    a. "You have the right to remain silent."

    b. "Anything you say can and will be used against you in a court of law."

    c. "You have the right to talk to a lawyer and have him present with you while you are being questioned."

    d. "If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one."

    e. "You may stop talking at any time."

    2. After the warning, in order to secure a waiver, the officer shall ask and receive affirmative replies to the following questions:

    a. "Do you understand each of these rights I have explained to you?"

    b. "Having these rights in mind, do you wish to talk to us now?"

    3. After the rights have been read, understood, and the person wishes to waive them, the officer will have the suspect sign the waiver of rights form. Officers shall interrogate suspects only when they have knowingly and intelligently waived their rights. Officers shall cease questioning whenever the suspect invokes the right to silence or requests the presence of counsel.

    a. Officers shall not try to elicit incriminating evidence unless the suspect waives the right to counsel.

    b. If a suspect, once in custody, requests counsel after being advised of Miranda rights, he or she cannot be interrogated again about the crime for which he or she was charged, other crimes, or by any other officers unless (l) the counsel is present during the interrogation or (2) the suspect himself initiates the interrogation. Officers therefore cannot obtain a waiver under these circumstances unless the suspect initiates interrogation. If a suspect refers to counsel but his or her intentions are unclear, officers may question the suspect further to clarify his or her intentions.

    c. If the suspect is deaf or unable to speak English, the interrogating officer shall notify the on-duty supervisor and shall immediately arrange to obtain an interpreter. [Insert here your local arrangements for obtaining sign-language or other language interpreters. If the suspect does not speak English, no interrogation should be attempted without a competent translator.]

    4. Officers will take care when advising juveniles of their rights to ensure that the rights are understood before obtaining a waiver. Officers should honor a child's request to speak to a parent or guardian before waiving his or her rights. Whenever possible, the child's parents should be present while the child's rights are explained and the waiver obtained.

    5. If a suspect has invoked his or her right to silence, officers may interrogate the suspect if, after a passage of time, the suspect initiates communication with officers. Before questioning, however, officers shall again administer Miranda warnings and shall obtain a written waiver.

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    Quote Originally Posted by sgt jon View Post
    I am 100% in agreement with the posted replies. The following is from a Virginia policy related to the very subject.

    INTERVIEWS AND INTERROGATIONS

    A. Definitions

    1. An interview, as opposed to an interrogation, may be construed as any conversation with a suspect, witness, victim, or the citizen.

    2. An interrogation, to paraphrase the Supreme Court, includes direct questioning (or its functional equivalent) about a crime or suspected crime, as well as any words or conduct on behalf of the police that may elicit an incriminating response from the suspect.

    a. Officers are reminded that an interrogation does not rely solely or exclusively on words; conduct can be the "functional equivalent" of asking questions.

    3. A person is in custody when an officer tells him or her that he or she is under arrest. The functional equivalent of being in custody occurs when a reasonable person in the suspect's place would feel that his or her freedom of action has been restricted to the same degree as a formal arrest.

    B. Rights admonition

    1. In order to achieve uniformity in administering Miranda warnings, police officers shall be issued cards with the Miranda warnings and waiver on them. Before custodial interrogation, officers shall advise suspects of their rights by reading aloud from the card the following:

    a. "You have the right to remain silent."

    b. "Anything you say can and will be used against you in a court of law."

    c. "You have the right to talk to a lawyer and have him present with you while you are being questioned."

    d. "If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one."

    e. "You may stop talking at any time."

    2. After the warning, in order to secure a waiver, the officer shall ask and receive affirmative replies to the following questions:

    a. "Do you understand each of these rights I have explained to you?"

    b. "Having these rights in mind, do you wish to talk to us now?"

    3. After the rights have been read, understood, and the person wishes to waive them, the officer will have the suspect sign the waiver of rights form. Officers shall interrogate suspects only when they have knowingly and intelligently waived their rights. Officers shall cease questioning whenever the suspect invokes the right to silence or requests the presence of counsel.

    a. Officers shall not try to elicit incriminating evidence unless the suspect waives the right to counsel.

    b. If a suspect, once in custody, requests counsel after being advised of Miranda rights, he or she cannot be interrogated again about the crime for which he or she was charged, other crimes, or by any other officers unless (l) the counsel is present during the interrogation or (2) the suspect himself initiates the interrogation. Officers therefore cannot obtain a waiver under these circumstances unless the suspect initiates interrogation. If a suspect refers to counsel but his or her intentions are unclear, officers may question the suspect further to clarify his or her intentions.

    c. If the suspect is deaf or unable to speak English, the interrogating officer shall notify the on-duty supervisor and shall immediately arrange to obtain an interpreter. [Insert here your local arrangements for obtaining sign-language or other language interpreters. If the suspect does not speak English, no interrogation should be attempted without a competent translator.]

    4. Officers will take care when advising juveniles of their rights to ensure that the rights are understood before obtaining a waiver. Officers should honor a child's request to speak to a parent or guardian before waiving his or her rights. Whenever possible, the child's parents should be present while the child's rights are explained and the waiver obtained.

    5. If a suspect has invoked his or her right to silence, officers may interrogate the suspect if, after a passage of time, the suspect initiates communication with officers. Before questioning, however, officers shall again administer Miranda warnings and shall obtain a written waiver.
    There is VA case law that says a simple traffic stop may require Miranda for this reason as stated above, "A person is in custody when an officer tells him or her that he or she is under arrest. The functional equivalent of being in custody occurs when a reasonable person in the suspect's place would feel that his or her freedom of action has been restricted to the same degree as a formal arrest."

    The case law states in part that once the overhead lights are on, the driver and occupants are not free to leave, and thus can be interpreted by a peson that his or her freedom of action has been restricted.

  11. #11
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    Quote Originally Posted by dansik View Post
    He's wrong. It's been hammered to us in the academy Miranda only applies with custody + interrogation.
    Yep!!

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