Dr. Bruce Frumkin joins the NACDL Engage & Exchange Discussion Series with host Mark Satawa for Competency to Waive Miranda Rights and False/Coerced Confessions: The Use and Misuse of Expert Testimony. 

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: The New York Court of Appeals held that law enforcement may question an individual in custody regarding “pedigree” information without violating Miranda if the questions asked are not “a disguised attempt at investigatory interrogation.” Pet. App. 7a. As the Petition explains, the Court should review this holding because it reinforces a deep and abiding conflict of authority regarding the scope of the “booking exception” to Miranda, Pet. 7-12, and because the New York Court of Appeals erred in its approach to that exception, Pet. 12-15.

Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Respondent.

Argument: When a police officer obtains custodial statements from a defendant in violation of Miranda and the prosecution introduces those statements at trial, the Fifth Amendment is violated and the defendant thus may sue officers under Section 1983 for damages. Even though the Court has sometimes described Miranda as a "prophylactic rule," the Court confirmed in Dickerson that the rule is indeed grounded in the Constitution.  The only question in such a Section 1983 case, therefore, is whether the officers' actions were the proximate cause of the constitutional violation. At least in a case such as this, where the prosecution introduced the statements at least in part because the officers failed to provide them with complete and truthful account of the circumstances under which the statements were taken, causation is satisfied because the constitutional violation was the direct and foreseeable consequence of the officers' actions.

We write to express our concern about your recent call to restrict the constitutional rights of individuals in the United States suspected of terrorist activity by seeking to codify or expand the “public safety exception” to Miranda v. Arizona. Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.

Freedom of Information Act request: NACDL and the Brennan Center for Justice at New York University School of Law seek Department of Justice records concerning guidance on use of the “public safety exception” to Miranda v. Arizona in terrorism or national security investigations.

Groups Call for Release of Secret Government Guidance on Miranda Exception -- Washington, DC (Feb. 22, 2011) – The National Association of Criminal Defense Lawyers (NACDL) and the Brennan Center for Justice at New York University School of Law today submitted an expedited request to the Department of Justice under the Freedom of Information Act (FOIA) seeking all “legal memoranda, procedures, policies, directives, guidelines, and other guidance[,]” since Dec. 25, 2009, “regarding use of the ‘public safety exception’ to Miranda v. Arizona...

Behind Closed Doors Thomas K. Maher, Christopher Fialko August/September 2000 53 The Fifth Amendment Is Alive and Well In United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999), a divided panel of the Fourth Circuit held that 18 U.S.C. § 3501 effectively overruled the Supreme Court's decision i

The protections afforded by Miranda are meaningless if no one identifies when a defendant may have been incapable of rendering a voluntary and intelligent waiver of rights. The “professional neglect hypothesis” addresses situations in which attorneys and forensic practitioners fail to screen for Miranda issues. The authors specify cognitive impairment as one of the most prominent domains for potential Miranda-related impairment.

Court holds the district erred in admitting evidence of a prior conviction.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for rehearing en banc.

Argument: No “magic words” are required to invoke the right to counsel; the panel and the California court of appeals erred in holding that the defendant failed to “unambiguously invoke his right to counsel” under Davis v. United States. The defendant, 19-year-old Tio Sessoms, surrendered himself to police for questioning and was read his rights under Miranda v. Arizona, and asked if there were “any possible way” he could have a lawyer present during questioning. When the detective hesitated, Sessoms said, “Yeah, that’s what my dad asked me to ask you guys . . . uh, give me a lawyer.” The detective persevered in convincing Sessoms that the only way to tell his side of the story was to waive his right to counsel. Defense counsel moved unsuccessfully to have his statement suppressed, and the state court of appeals upheld his conviction. NACDL argued that the state court’s decision was contrary to and an unreasonable application of U.S. Supreme Court precedent and that rehearing en banc was necessary to make clear that the police tactic of questioning “outside Miranda” is improper.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and Texas Criminal Defense Lawyers Association in support of Petitioner.

Argument: The Fifth Amendment applies prior to arrest. Using silence as evidence of guilt compels a suspect to incriminate himself. The right to remain silent protects the innocent. Use of pre-arrest silence allows for police abuse and skews the balance between the individual and the state.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders.

Argument: The Tampa, Fla., police department’s imprecise Miranda­-type warning that advises “You have the right to talk to a lawyer before answering any of our questions” but does not explicitly advise of the right to have a lawyer present during questioning comport with Miranda v. Arizona? Brief argues that any form warning that systematically omits mention of a core Fifth Amendment right does not pass constitutional muster.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner.

Argument: The age of the person questioned may, consistent with Miranda, be part of the custody analysis; considering age as part of the custody inquiry does not impose any burdens on law enforcement and is consistent with Miranda’s policy goal to provide clear guidelines to law enforcement.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union in support of respondent Van Chester Thompkins.

Argument: Prior to a 2 ½ hour interrogation, Thompkins was read his Miranda rights and acknowledged that he understood them. Although he did not formally invoke his right to remain silent, he remained virtually silent throughout questioning until finally a detective testified that he asked Thompkins whether he had asked God to forgive him for “shooting that boy down,” and he answered “yes.” Brief argues that Thompkins effectively invoked his right to remain silent by remaining silent during the interrogation and that any “implied waiver” of that right must occur much more quickly than the purported waiver on these facts.

Brief of the Roderick & Solange MacArthur Justice Center and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on petition for writ of certiorari).

Argument: The tactics that the interrogating officer was trained to use on Petitioner undermined Miranda. Law enforcement officers nationwide are trained to issue ambiguous and barebones Miranda warnings. Law enforcement officers routinely use tactics to minimize Miranda warnings to induce waiver as was done here. These tactics prevent suspects from understanding their Miranda rights.