Am I Eligible for An Expunction?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I get asked this question a lot by people that went through the system years and even decades before they come to see me.

Texas Code of Criminal Procedure Chapter 55 governs expunctions. It can be fairly complex in spots, but as a general rule you're entitled to an acquittal on a Class B Misdemeanor or above if you've been tried and acquitted of the charges. Also, you're entitled to expunction where you were arrested for a misdemeanor or felony offense and never charged by indictment or information and the statute of limitations has passed. On Class C Misdemeanors you're generally entitled to expunction if you are placed on deferred adjudication and there is no community supervision ordered but there are exceptions.

Several Class C offenses can be used to enhance crimes in the future. An example is with a Class C assault with a family violence allegation. Even though it's a Class C punishable by a fine only, a second offense -- no matter how small -- can be charged as a felony!

Other conditions of an expunction are that you are not subject to prosecution for anything else regarding the criminal episode which is the subject of the expunction and you can't get an expunction if you were convicted of a felony offense within 5 years of the date of the arrest you are trying to get expunged.

Often people don't know exactly what happened with their previous case. Finding out the legal result should be done prior to seeing a lawyer. Also the laws on expunctions change frequently so you may not want to assume you can get something expunged later because you never know when the Legislature and/or Governor in Austin will snatch that right away from you!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.

Should I Take a Police Polygraph?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Police will often call people under investigation and ask them to submit to a polygraph. Today I'll cover some of the broader issues but you should absolutely consult an experienced criminal attorney directly prior to making your decision to submit to a polygraph or not. This is because the factual scenarios and variables are countless -- and if the police are investigating you then the stakes are high.

If I pass the Polygraph, They'll Drop the Investigation, Right?

Hopefully. Remember passing or failing a polygraph is not admissible in Court. Even though you may pass, the police are not legally bound to let the case go. Again, every scenario is different so even with a passing polygraph, the police may still have sufficient evidence to charge you and they may still be convinced you've done something wrong. Also, police have the job of dealing with alleged victims who pressure them over the phone on a daily or hourly basis. Police may decide to keep going with the case, albeit half-heartedly.

Even where police promise they'll drop the charges if you pass they aren't bound by that promise. Also keep in mind that deception is a legitimate law enforcement tactic. Experienced criminal defense lawyers in your community may know whether the agency you are dealing with has a reputation for being trust-worthy or whether they've got a reputation of tricking people they investigate.

Is the Lie Detector Test Fair?

Again, maybe or maybe not. Some polygraph examiners have better reputations than others. Resources on the internet have wildly opposing views. It is possible for some polygraph tests to consist of unfair "do you still beat your wife?" or "do you turn down drugs very often?" questions that are designed to fail you. Then again, sometimes the results come out just fine.

Things You may not be Considering

Taking a polygraph exam for the police is no different than coming into the station voluntarily and giving a statement. The only thing inadmissible will be the fact you made the statements while taking the polygraph and the results of the polygraph. It will be fully admissible in Court and may educate the police on facts they may not already have and/or give them an admission of a fact the suspect but can't prove.

Are there any Alternatives?

There are several. First is that if you say no to a polygraph it may not necessarily mean that an investigation will result in charges being filed. This is for the reason that police need to have evidence of every element of the offense charged to establish probable cause to have an arrest warrant issued. If they don't have enough evidence then they can't go forward.

Second, you can allow the police to charge you and deal with the prosecuting agency instead of the police. The dynamics of these relationships is different everywhere, but generally speaking you and your lawyer may get the chance to deal with a different set of people who may be more sympathetic your side of the story without a lie detector test.

Third is that you can hire your own private polygrapher and conduct your own test. The positive of this is that you can eliminate unfair questions and if the result is bad, it is considered work-product and therefore privileged under the Texas Rules of Evidence. The down side is that (depending on the reputation of the polygrapher), the police or prosecutor may not accept the results, the process is more expensive, and if you tell the police you're doing a polygraph on your own and you never get back with them about the results -- they'll assume you took it an failed it.

In Summation

Being asked to take a polygraph by the police puts you in an extremely difficult spot. Sometimes in life we have bad choices and worse-choices... no good choices. You should always consult an attorney directly as that attorney can assist you in managing and evaluating the variables unique to every case.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific case you should directly consult with an attorney.

Evidence Of Good Character In Criminal Cases

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

We all want to think that our good deeds and honest lifestyle for years or decades should count for something. Often I'm asked by people that have never been in trouble if the judge or jury will be able to know they're good people.

There are ways and rules which permit you to interject good character to the judge or jury in trial. During plea negotiation, your lawyer can always try to persuade the prosecutor by pointing to a good record or a record of recovery.

Texas Rule of Evidence 404 controls character evidence for the accused in trial. An accused can put "character into question," but there are some limitations. First is that all evidence must be relevant under TRE 401. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence of volunteer work with the elderly, then, might not be relevant during the guilt/innocence phase at a DWI trial even though it is proof of good character.

Also evidence of character cannot generally be used at trial to prove conformity therewith (though rule 404b has specific exceptions). As an example, most judges probably won't let you defend theft allegations by showing that you have a good credit score. Character is a legally tricky issue and because it's really on a case-by-case and fact-by-fact problem, many judges will likely disagree as to what is or is not permissible. Appeals courts give trial courts a lot of discretion with these types of things.

Another issue with injecting character into the trial is that when a criminal defendant does this, it can "open the door" to the prosecution using character evidence of their own to try and dis-prove the accused's assertion of good character. Obviously in cases where the accused has a past record or similar accusations from before -- injecting character into evidence can backfire badly at the guilt/ innocence phase of the trial.

Character is always relevant at the punishment phase of the trial where an accused has been found guilty.

*Jeremy F. Rosenthal is an attorney licensed to practice in the state of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific matter you should consult an attorney directly.

Prohibited Weapons in Texas

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Often times people in possession of certain weapons don't learn that possessing those weapons is an offense until they're in handcuffs. Depending on the weapon in question, the offense can be a Class A Misdemeanor or even a Felony.

Texas Code of Criminal Procedure 46.05 controls prohibited weapons, and that statute says in relevant part,

"(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

"(1) an explosive weapon; (3rd degree felony)

"(2) a machine gun; (3rd degree felony)

"(3) a short-barrel firearm; (3rd degree felony)

"(4) a firearm silencer; (3rd degree felony)

"(5) a switchblade knife; (misdemeanor)

"(6) knuckles; (misdemeanor)

"(7) armor-piercing ammunition; (3rd degree felony)

"(8) a chemical dispensing device; or (3rd degree felony)

"(9) a zip gun. (3rd degree felony)

"(b) It is a defense to prosecution under this section that the actor's conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.

"(c) It is a defense to prosecution under this section that the actor's possession was pursuant to registration pursuant to the National Firearms Act, as amended.

"(d) It is an affirmative defense to prosecution under this section that the actor's conduct:

"(1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or

"(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).

There are more defenses to prohibited weapon possession than meets the eye. First is that there will always likely be a search and seizure issue of how law enforcement attained the weapon in question. If the search was illegal, then the exclusionary rule may keep the evidence suppressed requiring an acquittal.

Additionally, the State must prove "possession" which, under Texas Penal Code 1.07(39) means, "actual care, custody, control or management." In other words, law enforcement must do more than show the defendant was near the weapon or could have possessed the weapon. They must show he ACTUALLY possessed it. Finally, there are affirmative defenses such as if the weapon is a curio (generally antique weapons made before 1899).

The fact these offenses alone are mostly felonies clearly indicates that if you are accused of possession of a prohibited weapon that you should get a lawyer involved. Even if the weapon charge is for knuckles or a switchblade, understand that Federal laws and Texas laws are constantly evolving and a conviction may make lawful gun ownership in the future more difficult if not impossible.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For specific legal advice about any case you should consult a lawyer directly.

Project Innocence Interview -- Peter Neufeld

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Today I'm posting an interview done by Slate Magazine with Peter Neufeld, the co-founder of project innocence. It's an amazing read.

The main stream regularly writes off people like Mr. Neufeld and project innocence as "village idiots" unless and until the system turns on them. The main theme that runs throughout his interview, although they don't say it in these terms, is confirmation bias -- where the police grab onto a theory and won't let the facts get in the way.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific you should consult an attorney directly.

When do I Have to Plead Guilty or Not Guilty in a Criminal Case?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

In Dallas and Collin County criminal defendants are typically not required to enter into a plea on initial court settings and typically only do so either immediately prior to trial (in the case of a not guilty plea), or obviously if and when they make a plea bargain with the State. Most initial and second settings are merely to make sure the defendant is keeping up with requirements of bond as well as giving the prosecutor and defense lawyer an opportunity to make progress towards the resolution of the case... Be that a dismissal, a trial, or a plea bargain. Visiting directly with the judge is rare at these court dates.

Chapter 26 of the Texas Code of Criminal Procedure governs arraignments (the formal process where a court informs the accused of the charges against them as well as advising the accused of other rights). The arraignment is typically where a defendant will enter a plea, but the code is relatively silent on exactly when that must occur. Tex.Code.Crim.P. 26.03 only says arraignment is improper if it's done within two days of indictment and the accused is still in jail.

Most Texas Courts have their own policies in place for when they do arraignments requiring a defendant to plead guilty or not guilty. In General, Dallas and Collin Counties only require the plea to be made at a guilty plea or before trial begins.

Some courts may seek to arraign defendants at their initial court setting for other reasons. This doesn't necessarily mean you can't change your plea but you should obviously consult your lawyer first.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered as legal advice. For legal advice you should directly consult an attorney.

Dallas Morning News DWI Series

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Dallas Morning News is running a series of articles about DWI's as they relate to the criminal justice system August 14, 15, and 16, 2010. You can read today's article here.

Regardless of whether you agree or disagree with the article's point of view it is informative nonetheless as the staff authors Diane Jennings, Selwyn Crawford and Darlean Spangenberger have clearly done their homework in interviewing prosecutors, judges, and criminal defense lawyers alike. What I think they're missing is that this problem has 10-sides... not just 3.

My chief complaint (this is MY blog after all), is that both yesterday's and today's article assume anyone accused of an intoxication offense is, in fact, guilty. From that starting point, it is understandable then that it appears anyone and everyone that gets a result short of a full-fledged flogging is somehow cheating the system. Let's not forget this is a county known for sending innocent people to prison.

I am glad to see the concept of deferred adjudication enter the conversation, however, as one of the main problems with the Courts dealing with DWI's is the all-or-nothing position people accused of DWIs face on a daily basis. Giving the accused a middle ground gives them something to lose by fighting the charges and in my opinion would be a major step towards clearing the dockets.

One suggestion by Richard Alpert (a Tarrant County Prosecutor known state-wide as an authority on prosecuting DWI) suggests in today's article that if the legislature is going to consider deferred for DWI cases that they at least be able to enhance subsequent DWI's as if the previous deferred was a conviction. Sadly, this is exactly what makes deferred adjudication a trap-door in other cases. Essentially it would be deferred in name only -- and as I joke with my clients -- it only feels good to get deferred.

But I digress... if you're interested in the topic, the DMN series is a decent enough read.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For legal advice for any specific situation you should contact an attorney directly.

Collin County Juvenile Justice System -- A Defense Lawyer's Perspective

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Often parents dealing with the juvenile justice system feel like they're wading deeper and deeper into quicksand. Believe me -- I get it! Today's blog is about giving you a defense lawyer's take.

For starters, Collin County has a dedicated Court for juvenile cases -- that being the 417th District Court. Regardless of the level of offense (for everything over a Class C), any and all juvenile cases are currently brought in that court. The Court is assigned a team of 3 prosecutors by the Collin County District Attorney's office and there is also a team of juvenile probation officers which assist the Court and the DA's office in making evaluations and reccomendations.

Probably the biggest source of frustration for parents and defense attorneys alike is the unique rehabilitative role played by the State (and by State I am combining the prosecutors and the probation officers) when it comes into conflict with your juvenile's legal rights. The State often isn't as concerned as they need to be about the rights of your son or daughter -- and experience tells me they often they skip the facts of the case and proceed to the punishment or "rehabilitative" phase of the case too quickly.

Not only that, but sometimes it seems as if the evaluator comes away with a very different take on a conversation with a parent than the parent may think. I don't pretend to know exactly why, but it's not uncommon for the parents to tell someone evaluating their child or teenager something like,

"He's a good kid and he helps others... sometimes he doesn't pay attention to me and that gets frustrating, but he's been doing better lately..."

And what makes it into the report that's submitted to the prosecutor or the Judge is, "Parent says the child doesn't pay attention to them and the parent is frustrated with the juvenile..."

I believe strongly that your juvenile needs a voice too. Maybe your juvenile didn't do anything wrong at all. Maybe they made a a bad mistake or even hurt someone. Regardless, isn't one of the worst lessons your teenager can take from dealing with the justice system is that authority figures can make-up the rules as they go along? How motivated will a teenager be to do better when they think authority figures will still treat them unfairly even when they do their best?

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For specific legal advice you should consult an attorney directly.

Texas Perjury Law

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Texas Penal Code Chapter 37 covers perjury. Perjury, like any other type of charge, has differing levels of severity depending on the circumstances. The degree of offense ranges from a Class A Misdemeanor to a Third Degree Felony. Punishment level aside, Perjury is obviously a crime of moral terptitude which carries with it it's own set of stigmas and consequences. Make no mistake -- a perjury allegation is ridiculously bad news!

Section 37.02 says,

"(a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

"(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

"(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

"(b) An offense under this section is a Class A misdemeanor.

This section refers to documents that you may be asked to execute under oath from time to time. In case you're curious, Chapter 132 of the Civil Practice and Remedies code allows prisoners in the Texas Department of Corrections to file documents as if they were under oath by reciting a declaration... Probably because they don't have many notaries working in prisons.

Aggravated Perjury is a Third Degree Felony and is under Section 37.03 which reads,

"(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

"(1) is made during or in connection with an official proceeding; and

"(2) is material....

Whether a statement is "material" is for the judge to decide. 37.04 covers materiality and says, "...A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding... It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial."

There is a defense to aggravated perjury and that is through retraction. retraction must be "before completion of the testimony at the official proceeding; and before it became manifest that the falsity of the statement would be exposed."

Several other notes about perjury and aggravated perjury... No lawyer can ever assist someone in the commission of any offense, must less these offenses. You should RUN (not walk) away from any lawyer that suggests or insinuates otherwise.

Also many trials in criminal and civil law produce inconsistent statements from one witnesses (in varying degrees), or from multiple witnesses with differing accounts. Criminal prosecutions don't automatically follow. It is up to the prosecuting agency to determine whether perjury has actually occurred and that the case is something worth pursuing.

If you are facing accusations of perjury or aggravated perjury, you should involve criminal counsel immediately. It is an extremely serious charge and can put a major crunch in your work and career plans!

Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should contact an attorney directly.

False Report to Peace Officer In Domestic Assault Cases

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

It is illegal in Texas for a person to make a false report to a peace officer or a law enforcement employee. Texas Penal Code 37.08 is the governing statute. That provision states,

"(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

"(1) a peace officer conducting the investigation; or

"(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

"(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.

"(c) An offense under this section is a Class B misdemeanor.

A common situation where this law comes into play is in assault/ family violence cases. Often, alleged victims of an assault will seek to retract or deny having made a previous statement to law enforcement. In those situations, they could actually be exposing themselves to criminal liability for making a false statement.

It is not uncommon in assault/ family violence situations for alleged victims to seek counsel of their own (not the same attorney representing their spouse charged with assault) if they retract their original statement or admit under oath that their original statement was false. The alleged victim has important rights in this scenario as well and a lawyer can help protect them from incurring legal liability themselves in these cases.

*Jeremy F. Rosenthal is an attorney license in the State of Texas. Nothing in this article should be considered legal advice. For specific legal advice for any specific situation you should directly consult an attorney.

Computer Crimes: Breach of Computer Security

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Texas Penal Code Section 33.02 criminalizes accessing another person's computer or computer network without their effective consent. Specifically, subsection (a) of that provision says, "A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner."

A "Computer" is defined by Tex.Pen.C. 33.01(4) as "an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device." Even though I'm no tech guru, it would seem to me this definition would fit almost any smart phone such as an iPhone or Blackberry.

"Effective Consent" is defined by Tex.Pen.C. 1.07(19). That definition nullifies consent if the consent was gained due to fraud, force, threat or if the person giving consent was not able to make reasonable decisions due to age, disability or intoxication.

A standard breach of computer security in Texas is a Class B Misdemeanor punishable by up to 180 days jail and up to a $2,000 fine. In the event the breach of security causes damages to another person, then the punishment level is governed by the amount of damage suffered. Above $1,500 but less than $20,000 is a State Jail Felony; a Third Degree Felony if above $20,000 but less than $100,000; a Second Degree Felony if over $100,000 but less than $200,000; and a First Degree Felony if above $200,000 of financial loss.

All computer crimes require detail-oriented criminal defense attorneys. There are many technical issues and evidentiary issues which are every-bit as important as the underlying questions which can certainly be complicated as well. Unauthorized access cases have many complications that are similar to other crimes such as theft and even trespassing -- due to the nature of whether someone has a legitimate reason or "effective consent" to take a certain action or be a certain place (whether in the real world or in cyberspace). The factual applications are limitless -- employment or even unfortunately in divorce scenarios where spouses are gathering information on one another. What some people see as being harmlessly nosy -- the law in Texas can recognize as a crime!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.

Are There Depositions in a Criminal Case in Texas?

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Knowledge is power. A good criminal defense lawyer will want to know as much of the State's case as conceivably possible. Most of the time that will probably only be through the police reports, an independent investigation, or what witnesses will tell you voluntarily. Depositions in civil cases are common but depositions in criminal cases in Texas courts are extremely rare.

Depositions serve two main functions; (1) discovery -- or learning the facts of the case; and (2) to nail down a witness' version of events for later impeachment. Insurance companies and civil lawyers know all to well that not many people give identical versions of events on multiple occasions. They get as many witness statements from the same witness as possible to exploit inconsistencies or weaknesses.

Texas Code of Criminal Procedure 39.02 allows a defendant to petition the Court for a deposition if the defendant can show "good reason" for needing the deposition. It is such a rarity that most trial judges probably won't see the utility in allowing a deposition of a police officer though. In all likelihood, depositions in criminal cases are reserved for instances where a witness may not be available later for trial. If anything, the law allows the prosecution just as much or more leeway with deposing a witness or an alleged victim. Section 39.025 requires that if the alleged victim is over 60 years old or disabled then the deposition must be taken by the prosecution no later than 60 days after the deposition is requested.

All is not lost for the accused though. There are a few different mechanisms that allow deposition-like examinations of a police officer prior to trial. An example is an Administrative Law Review ("ALR") in a DWI case to determine whether a driver's license should be suspended or denied. Another example is what is known as an "examining trial" in felony cases to determine if the State has probable cause to hold someone in jail accused of a Felony prior to presentment to the Grand Jury. These are both instances where an officer can be sworn-in under oath with a record that can be used later. A good criminal defense lawyer knows how to seize these opportunities for discovery.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.

Recent Changes to Miranda Rights and How they can be Waived

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

This Summer the U.S. Supreme Court has made a handful of rulings chipping away at Miranda rights. Most notably, in Berghuis v. Thompkins the Court ruled that an accused must "unambiguously" invoke his right to remain silent to garner the protection of Miranda.

In Berghuis, the Court held that a Michigan man who was given Miranda warnings sat in silence for three hours while police were present peppering him with questions did not "unambiguously" assert his Miranda rights and therefore waived them when he finally cracked three hours later by admitting that he prayed for forgiveness for the shooting.

Here is an excellent article that really gives a broad history and perspective of the issue.

In Plain Language

To recap, Miranda rights are necessary because our system of justice is adversarial. At some point, a neutral police investigation can change into a criminal prosecution which is anything but neutral. The problem for defendants is that the police make this choice -- and often won't tell the accused. This can give the police an extremely unfair advantage in pressuring statements and confessions out of criminal suspects. An accused may give a statement or a confession thinking they'll avoid criminal prosecution by coming clean -- or may tell the police what he thinks they want to hear thinking it will persuade the police to drop the "investigation" when the truth of the situation is that the police are planning their court-room strategy. In any event, an accused has a 5th Amendment right to remain silent and it's conceivably triggered when the proceedings become adversarial (in Texas when the person is in custody.)

Everyday Practice

Unfortunately, many police officers are either oblivious to your rights or see your rights as merely an obstacle they can hurdle, slither-around, or something to which the can just give lip-service. The facts of Berghuis are not uncommon with confessions in criminal cases. Officers routinely play all sorts of different games when it is clear the suspect isn't willing to cooperate. Sometimes the officers can pressure the accused like a used-car salesman trying to make a sale or sometimes the officers can use law-enforcement techniques such as deception. In any event, merely because someone remains silent or asks for a lawyer doesn't automatically mean the questioning is necessarily over -- even though that is what should happen.

The Rationale Behind Berghuis

Justice Kennedy writing for the 5-4 majority in Berghuis wrote, "If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. The fact that Thompkins made a statement about three hoursafter receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver."

I added the italics in the quote from Justice Kennedy above for the reason that it exposes, in my opinion, his lack of understanding of the every-day practice of criminal law and police tactics. First of all, very rarely does an accused truly understand Miranda with the same depths as even the police-officers much less know how to "unambiguously" know how to assert them. Often an accused may ask officers follow-up questions about Miranda or give a luke-warm or half-hearted response that they don't want to answer questions.

Secondly... Justice Kennedy dangerously assumes the police would have ended the interrogation after the "unambiguous" assertion.

Finally, it allows the police to be the judges of what does or does not constitute an "unambiguous" assertion of Miranda rights by an accused. As a guess, not many police officers that consistently undermine Miranda any-way will give the accused the benefit of the doubt if they just "sort of" invoke Miranda and the accused could be drilled until the police get what they're after.

Is Miranda Dead?

No. As with all Supreme Court rulings, only time will tell the true impact of Berghuis. But make no mistake -- police may interpret this ruling as a green-light to ignore people's attempts at invoking their right to counsel.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific situation you should directly consult an attorney.