When Miranda Rights Apply Essay

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Right to Counsel

To whom it may concern,

This memo serves to inform and educate on what is commonly known as the "right to counsel". Even if criminals caught red-handed are not the Constitutional scholars that they think they are, anyone accused of and/or arrested for a crime does have a right to counsel. Before getting into when the rights to counsel become guaranteed and enforceable, the rights themselves should be discussed and the genesis of how they came to be should also be covered. The Miranda rights are as follows:

• You have the right to remain silent

• If you do say anything, it can be used against you in a court of law

• You have the right to have a lawyer present while you are being questioned

• If you cannot afford a lawyer, one can be appointed for you if you desire

The Miranda rights came to be due to a rape case involving Ernesto Miranda and that happened in 1963. Police arrested him for the rape of an intellectually disabled woman. They took him to be interrogated. After some discourse with the police, a written confession was produced that Miranda allegedly conceded to. It included a clause at the top that said that Miranda gave the confession willingly and with his rights fully known.

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Eventually, the conviction was thrown out because that was apparently not the case and thus the confession was not valid. He was later retried and convicted again, served five years in jail and was later killed in a bar fight in the 1970's. The basis for the Miranda decision was the Fifth Amendment, which speaks to the right of a person to not incriminate themselves upon questioning.

Anyhow, Miranda rights apply to one thing in particular and that is police questioning. However, they specifically apply to a person that is detained or arrested. They do NOT apply to people that is free to go. When a police officer is questioning someone and they are free to go, a Miranda warning need not be issued as it is not required. Police will often stress to someone they are talking to that they can leave at any time so that it is clear that they are not detained or under arrest. However, once an arrest or detention is in effect, the police must read the Miranda warning before going any further. If they….....

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