Mississippi Lawyer Blog

I am writing this blog not only for our clients in Hinds, Rankin, and Madison Counties who might be questioned in a criminal case, but so everyone across Mississippi who may be questioned understands their legal rights.

The Fifth Amendment to the United States Constitution protects a person from being forced to provide evidence to the government for their own prosecution. The Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Since the very first days of our country the phrase "nor shall be compelled in any criminal case to be a witness against himself" had to be interpreted or given meaning by the courts. What did this mean? Did it mean that a person did not have to testify? Did a person have to provide physical samples like blood, hair, hand-writing? What about documents, did they have to be provided to the government?
For years after the passage of the Constitution the U.S. Supreme Court handed down decisions telling the country what could be compelled from a person and what could not. The various decisions are fairly complex but as a general rule the Fifth Amendment protects a person from having to provide the government verbal statements that can be used against the individual in court.

It is fascinating to look back at the history of the Fifth Amendment. Up until the mid-1960's the Fifth Amendment did not even apply to the states and did not apply in police interrogations. Does that shock you? We all understand now that the Fifth Amendment applies to all custodial interrogations, but for almost 200 years the Fifth Amendment simply meant that you could not be compelled or forced to give testimony by legal compulsion. The police could question you without telling you about your rights and since the police could not force you to talk, it was not believed that the Fifth Amendment applied. Fortunately that changed and another great change came onto the legal environment in the name of Miranda v. Arizona, 384 U.S. 436 (19660.

The Miranda decision made a significant change in the law of interrogations. First, the Court held that the Fifth Amendment applied outside of court proceedings to custodial interrogations. Second, the Court held that custodial interrogation could be intimidating and before a person could be questioned while in police custody he/she had to be given what has now known as the Miranda Warnings. It is important to note here that custodial interrogation is defined as those times when a person is taken into custody against their will or when the person reasonably believes they are not free to leave based on the surrounding facts. So, a person can voluntarily go do to the police department and give a statement. A person can be approached by law enforcement on the street and voluntarily give a statement. The police can come to your home and if you invite them in and give a statement, it may be used against you. In each of these circumstances if you give a statement it can be used against you. As a practical matter police almost always give a person their Miranda Warnings even when the person is not in custody. The police do this to "play it safe" and avoid a person later arguing they believed they were in custody and were not given their Miranda Warnings.

I highly recommend that any person whether in custody or not invoke their Fifth Amendment right to remain silent. If you are the target of an investigation invoke your right to remain silent and consult a lawyer. If you are a subject of an investigation exercise your right to remain silent and consult a lawyer. If you get stopped on the street, in your car, or if you get a visit from police asking your questions or asking about your family, invoke your right to remain silent and seek legal advice. Do police like it when a person exercises their right to remain silent? No they do not. But when a police office is in trouble, they quickly assert their rights and they know them well. Also, in many jurisdictions the police unions have provisions in their contracts prohibiting internal affairs from even talking to a police officer after the officer is involved in a shooting with a citizen. The police argue that the event is too traumatic and the police needs time to consult with a representative before giving a statement. Well, being questioned by the police is traumatic for the general public-the ordinary man or woman on the street-so why shouldn't you also exercise your rights and speak to a lawyer before you talk to the police.

Mississippi has a Constitution also and in that document there is a phrase very similar to the Fifth Amendment. I won't go into detail in this article about the Mississippi provision dealing with the right to remain silent. You should note that Mississippi is bound to accept the rulings of the Federal Courts when the Federal Courts interpret the Federal Constitution. However, the Mississippi Supreme Court has the right and authority to interpret the Mississippi Constitution in such a way that it provides its citizens greater protection than the Federal Constitution.

I decided to write this blog article because I recently read an editorial by former New York Mayor, Ed Koch. It was Mr. Koch's opinion that the Miranda decision was useless and unnecessary. I quote to you just a portion:

I have never understood why the Miranda rule was ever imposed by the U.S. Supreme Court. A significant number of people committing crimes want to confess their guilt. Why in the world do we want to inhibit them from doing so? Even where the Miranda warning is provided, there are large numbers of putative defendants who will proceed to confess their wrongdoing. Isn't that good? It certainly is good for society. Of course, if the confession is forcibly obtained - physical duress in any form - it should be excluded. But if voluntary, why not use it in the trial that follows? I have always believed the supporters of maintaining the rule do so because they believe it is unfair that because a smart criminal would never confess, whether or not they were warned under Miranda, we are taking advantage of the less intelligent or less informed criminal who gives in to the normal impulse that many people have, which is to get their guilt off their chest and confess to the comforting police officer who tells them their confession and cooperation could help them at sentencing.

This is an interesting opinion. I guess it is to me because I have grown up as a lawyer knowing the Miranda Rule and respecting that it provides the ordinary citizen some protection against oppressive police conduct. Of course some police officers find sneaky ways to get around the Miranda Warnings. I don't think however Miranda should be abandoned. I would hasten to point out that when the Miranda decision was first handed down, it only passed and became law by one vote of the U.S. Supreme Court. The ruling was 5 judges for the decision and 4 against the decision. The majority won and ruled. Over the years as the U.S. Supreme Court changed, so were changes made in the Miranda Rule. I think that we could easily see the end of the Miranda Rule one day but I hope not. Until that time remember what I have written time and time again: When in doubt demand to speak to a lawyer before you speak to law enforcement. It is your RIGHT. And, anything you say, even if you are told it is "off the record," can and will be used against you. Use your rights if your need to and come to speak with us.

Continue reading "Is The Right to Remain Silent on the Way Out?" »

I cannot tell you how many times I have received a call and the voice at the other end says "hey, I have a warrant for my arrest. What should I do?" I always tell my brother to calm down and take his meds. (I kid, my brother is in his 50's and has never had so much as a traffic ticket). The caller did the first thing you should always do when you are in trouble: speak with a qualified criminal defense attorney.

In this situation, I always advise the client that he will need to turn himself into the police immediately. However, depending on the case, we will attempt to call and set a bail for our client so their time in jail will be minimal. I will also call and speak with the police and advise them that our client is going to surrender himself and request that he not be interviewed. (It's not a bad idea to put this in writing either).

Finally, and most importantly, I drill it into my client's head to never speak with the police about his case. You know on those t.v. crime shows when they tell criminals "anything you say can and will be used against you in a court of law"? Well, they are serious about that! When you are arrested don't say anything!

Continue reading "What should you do in Mississippi if the police have a warrant for your arrest?" »

Law enforcement in Jackson, Hinds County, Madison, Ridgeland, Clinton, and in all the other Municipalities around Jackson are very aggressive in their pursuit of people who they think are guilty. The police officers sit around intersections waiting for people to pass by at late hours in the evening. They follow so close behind the car they are following that if it was an average citizen following so closely, he or she would be ticketed on the spot. When law enforcement forms an individual or collective opinion of another person's guilt, it is often impossible to change their mind.Whether this is zealous law enforcement, or over-zealous law enforcement, is often in the "eye of the beholder."

I have frequently written on a topic I believe is critically important to a free society and that is the American Bill of Rights. The Bill of Rights is a short document but it set the ground work for the creation of a great system of justice. Occasionally the system makes a mistake, but every system administered by human beings is prone to some degree of error. As Americans we need to continuously remember how and why the Founding Fathers forged the Bill of Rights, and remind ourselves that rights ignored or not enforced can easily slip away into the fog of history or be lost to a tyrannical government.

One of the rights I have frequently written about is the Fifth Amendment Right preventing the government from forcing any person to be a witness against himself in a prosecution. From this right comes the "right to remain silent" and the Miranda Warnings. The Mississippi Constitution has a similar provision found in Article 3, Section 26, which provides in part: "...and he shall not be compelled to give evidence against himself...."

When I was a young lawyer I heard a prosecutor jokingly say, "There is no challenge convicting a guilty person, it is the innocent that are the real challenge." That statement turned my stomach. Nowadays with all of the innocent people being cleared by DNA evidence after sitting on death row or spending decades in prison, it is an even more chilling and disgusting statement. It is the main reason why I have said, or maybe even preached over and over, before you speak to any law enforcement officer, speak to an attorney first.

I am going to repeat myself: If you are stopped and you think you are a suspect; if the police begin treating you as a suspect; if they come to your home and start probing into an area that makes you feel uneasy; or if your gut or instincts tell you something does not feel right about the questions the police are asking, respectfully demand your right to remain silent and ask for a lawyer. Once you invoke your right to remain silent and ask for a lawyer, stick with your rights!

There are a few things you need to know about your rights. First, the police can talk to you all day if you are willing to stand there and talk to them. If the police come to your house or work you are not required to talk with them if you suspect they are investigating you. That is your right! If you have a concern about whether you are being investigated, you should invoke you right to remain silent and tell the police you are going to speak to a lawyer first. That is your right!

Oftentimes a person will come in our office after being charged with a crime and the first thing they say is "the police did not read me my rights." Well, if the police don't question you they don't have to read you the Miranda Rights. The Miranda Warnings are required anytime the police seize you, hold you, deprive you of movement, or take you into custody and want to question you for a crime. If they don't take you into custody and you voluntarily agree to talk with the police, they do not have to read you your Miranda Warning.

When you are stopped for a traffic violation the police can make inquiries about your driver's license, registration and insurance. The police can also ask general inquiries from you while waiting for the report on your driver's license. They should not however continue to hold you after they receive a report that your driver's license and registration is valid. This is a very complicated and contentious area of constitutional and criminal law because police often believe they have the right to do whatever they want on the street. They frequently use pressure techniques and trained language skills to convince stopped motorists to talk with them or consent to a search of the car or person.

The best and easiest things to remember and which serve as "general rules" are the following:
1. If stopped in your automobile, you do not have to consent to a search of your person or car. That is your right!
2. Should police come to your home and ask to search it, you do not have to consent to a search of your home or any other property. The police must have a search warrant. That is your right!
3. If you are stopped in your car while driving, you should answer questions about your driver's license, registration and insurance, but you do not have to answer questions that might point toward other possible criminal conduct. That is your right!
4. If the police call and want to talk with you, if they come to your home or at work, if they approach you on the street and want to discuss a crime, or something that you have any reason to worry about in the past, you have the right to not speak with the police. You have the right to speak with an attorney first. You have the right to have the attorney speak to the police for you. Follow your instincts. That is your right!
5. Once you have told the police you do not wish to speak, once you have asked for an attorney, you must stick to your rights. If you ask the police a question then it may allow them to start questioning you again.
6. Remember, the U.S. Supreme Court has said in some instances it is okay for police to lie to you. If you want to make full use of your rights, then after you ask for a lawyer, after you tell the police you do not wish to speak with them until you see and talk with a lawyer, do not speak to the police about the facts/case until you talk with your lawyer. That is your right!

The area of constitutional law which involves the Fifth Amendment Right to remain silent also intersects with the Fourth Amendment Right to be free from unreasonable search and seizure. It is often hard to talk about one without the other, because a stop or search often leads to the police wanting to question a suspect, or the questioning of a suspect often leads to the police wanting to search something owned by a suspect. As an American you have the option of waiving and giving up your constitutional rights. You also have the right to invoke or use them. That is your right! Or as I like to say, "These are your rights, Use Them or Lose Them."

Continue reading "You Should Seek Legal Advice Before You Talk To The Police" »

I hate the Steelers. Always have, always will. But there's a lesson to be learned from Steelers' wide reciever Hines Ward latest DUI arrest.

Hines was stopped in the early morning hours by Atlanta police driving his Ashton Martin. He admitted to drinking "two beers" (why is it always "two beers"?) earlier in the evening. Ward then agreed to take field sobriety tests. The officer said that Ward "failed" the tests. He was then arrested and charged with DUI.

First and foremost, Ward shouldn't have been drinking and driving. We all know that. But if you're going to have a beer and drive, leave the fancy Aston Martin at home and drive something less snazzy. Maybe a BMW or Mercedes. Also, if you're out at 2:30 a.m. in an Aston Martin, chances are a cop is going to pull you over just to make sure the car isn't stolen.

During the police encounter, Ward incriminated himself by admitting that he had beer earlier in the evening. That makes the Government's job easier when they prosecute him. If you have been drinking and are stopped by police, don't admit to drinking anything. Don't lie and say you haven't either. Just ask for your lawyer. (That's me by the way)

Lastly, Ward took the Field Sobriety Tests and apparently one of them wasn't even "standardized". (The "alphabet test" is not one of the approved standardized field sobriety tests) Look, when you're pulled over by the police and you've had a couple of beer, you're going to be nervous. Why agree to perform a series of balancing tests in the middle of the night on the side of the road while blue lights pulse around you like you're in some LA nightclub? Politely, and I mean politely, decline the officer's request to take the test and again ask for your lawyer. Maybe Hines thought he could pass the tests with those moves he used to win Dancing with the Stars?

Continue reading "Pittsburgh Steelers star Hines Ward Arrest Provides Lesson for Mississippi DUI Clients" »

As an avid sports guy, I've been reading about the upcoming perjury trial of Barry Bonds and Roger Clemens and it struck me how they would not even be in this position had they simply kept their mouths shut. Both have been indicted for lying under oath about using steroids. Had they simply invoked their 5th Amendment right to remain silent, neither would be spending hundreds of thousands of dollars fighting these charges. Are you listening Lance Armstrong?

The cases of Bonds and Clemens really hit home for me. In my practice, people who are arrested and end up speaking with the police usually end up talking their way right into an indictment. They can't help it. They either admit to the crime or lie about it. If you lie to a federal agent, that is a crime in and of itself. Just ask former Hinds County Assistant Distrct Attorny and Hinds County Circuit Court Judge Bobby Delaughter.

I understand that when people get arrested, they feel pressured to talk to the police. The police may take a "nice guy" stance and say they want to help. Heck, the police may even lie about some facts of the case to get you to talk. Ironically, our Courts have condoned police lying to citizens in order to get confessions. Or perhaps you are the person who feels that you can outsmart the police like Verbal Kent did in Usual Suspects? Don't kid yourself. When you agree to speak to the police, you must understand that you are NOT on a level playing field. When you are told you have the right to speak with an attorney, excercise that right! The fact that you don't speak to the police cannot be used against you in Court. However, anything you say WILL be used against you.

Continue reading "Mississippi Criminal Defense Rule #1: You DO Have the Right to Remain Silent" »

You do not have to say anything to a law enforcement officer that be used against you in Court. The Fifth Amendment to the United States Constitution and the Mississippi Constitution provide that no person can be compelled to give testimony against themself. But, what exactly does this mean?

People in American have a right against self incrimination. In other words the police cannot make you give oral testimony that can be used against you in Court. Before police question a suspect who is in custody the officers must read what is famously called the Miranda rights. The Miranda rights tell a suspect that they do not have to speak, if they do speak what they say can be used against them, that they have a right to an attorney, and if they cannot afford an attorney one will be appointed at no expense.

This all seems clear cut and good. However, the Miranda rule is far from clear. For example, when is a suspect in custody? Is a traffic stop custody and do police officers have to read Miranda rights during a traffic stop? Can a person be in custody even though they are in their own homes? Can a person waive their Miranda rights and consent to a police interview? These are just a few of the issues a person confronts and a lawyer must deal with when talking with a prospective client.

From time to time the criminal defense attorneys at Coxwell & Associates have written on the Miranda rights. Miranda rights may be one of the most frequent and reappearing topics on our Blog. Knowing when to talk with law enforcement and where to draw the line can be critical in an individual's defense. If you are interested in knowing more about your Miranda rights please search our Blog for other informative articles on this important right.

Almost every day and each time someone comes into our office after being arrested they eventually state "the police did not read me my rights." This is said to me in such a bold way, as if I should already know and affirm that their arrest is not legal. I have to tell the clients that their arrest is not going to be thrown out just because the police officer did not read or tell them about their rights. I am of course referring to the Miranda rights. I have posted an article on this Blog previously about a person's Miranda rights. If you want a good understanding look up that article. The bottom line is this: Your Miranda rights only need to be given when you are in police custody and they want to question you. If you are not in custody the police can talk to you without telling you of your Miranda rights. And the police can arrest you without telling you about your Miranda rights. The failure of the police to tell you about your Miranda rights will not cause your arrest to be "thrown out." So, if you are arrested, don't make any statements to the police. Ask to see a lawyer. Call one of the attorneys at Coxwell & Associates. We have the knowledge and experience to protect you.

You have the right to remain silent," and I urge you to use it. The part of the sentence in quotations comes from the famous case called Miranda v. Arizona, and it is what we lawyers call the Miranda rights. The Miranda rights are warnings that the United States Supreme Court held were required any time a person is held for questioning in a crime and subjected to custodial police interrogation. The rights come from the Fifth Amendment and the Fourteenth Amendments of the United States Constitution and are as follows: 1. You have the right to remain silent. 2. You have the right to an attorney at questioning 3. If you cannot afford an attorney one will be provided for you and 4. Anything you say may be used against you in Court. Many states have similar constitutional provisions so you may be protected by both the Federal and the State Constitutions.

The second part of the first sentence is something you will probably not hear from law enforcement. Police officers are not going to encourage you to invoke your right to remain silent. Instead they are going to encourage you to waive that right and any other substantive or procedural rights that protect you. When I was a young lawyer I bought a book on official police interrogation techniques so I could better understand what police would say to people they arrest. The entire book was different psychological ways to interrogate someone to get them to waive their rights and confess. I have also represented police officers in the past who were charged with crimes and have been told some of their techniques. It takes a lot of courage to say no to a room of police officers pressuring or cajoling a man or woman to waive their rights.

You should know that the Miranda rights only apply when you are in police custody. What constitutes police custody can be a cloudy question. A police officer stopping on the street to talk with you is not police custody, but holding you by force or psychological force would be police custody. Once you are in custody, you must be given the Miranda warnings before you are questioned. I have written on this topic before and I am a firm believer that if you are a suspect you should invoke your right to remain silent and speak with a lawyer, no matter what law enforcement may say to the contrary. You should answer the booking questions, such as your name, address, parents, tattoos, ect., but beyond those questions you should not answer direct or indirect questions on any topic. If you invoke the right to remain silent, you should not speak to the officers later about the same topic. If you are being transported to or from jail or court, you should not engage in conversations with any officers about your case. There is no such thing as an off the record conversation or casual conversation. If you make a statement, it may be used against you.

Before I leave this topic I suggest to you that at all times you be honest with yourself. I hope no one ever makes a mistake and commits a crime. But recognize that good people can make mistakes and bad choices. If you find yourself in this unpleasant position, use your rights. If the police come to visit you and they claim they want to talk with you because you might be a witness, ask yourself this: "Is there any reason I should be worried about being questioned by the police or F.B.I." There are over 4500 Federal Laws and regulations that have the same force as laws, and many state laws. I personally believe now days someone could commit a crime and not know it. You have the right to remain silent. Honor it and use it until you speak with a lawyer.

If you or a loved one need a criminal defense lawyer give us a call. Our attorneys have handled drug cases, white collar felonies and misdemeanors, shoplifting, false pretenses, and many other serious crimes. Our office is in Jackson, Mississippi but we travel to Rankin, Madison, Copiah, and every other county in Mississippi. We regularly appear in Circuit Court in Brandon and Canton. Criminal defense and serious accident cases are out focus and your protection is our primary concern.