Editorializing about the Miranda Rights in Green v. U.S.

“Police did not read me my rights.”

Defense lawyers hear this all the time from clients who are convinced that, because of this oversight on the part of the police, all charges will be dismissed.

Clients are then disappointed to learn the truth: The recitation of rights under Miranda v. Arizona is only required when (1) the suspect is in custody and (2) the statements are made in response to police questioning.

Even then, the sanction for failing to inform the suspect of the suspect’s rights to a lawyer and to remain silent is not the dismissal of all charges. It only means that the government will not be able to introduce any un-Mirandized statements against the defendant at trial.

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The defendant in Sean Tyler Green v. United States, __ A.3d __ (D.C. 2024) was convicted of first-degree murder after a trial in which the defendant’s custodial statement to detectives was introduced against him.

The detective in this case did in fact read the standard advisory language to Green:

You have the right to talk to a lawyer for advice before we question you and to have [a lawyer] with you during questioning . . . If you cannot afford a lawyer and want one, a lawyer will be provided to you . . . If you want to answer questions now, without a lawyer present, you still have the right to stop without answering at any time . . .

The problem is that, deciding not to leave well enough alone, the detective added to the language. Specifically, editorializing about the police department’s inability to furnish lawyer at that time, the detective told Green that Green would not have access to a lawyer until he went to court:

You know, there is not a lawyer out there. We’re not going to bring a lawyer in here to talk to you. That happens when you get to court, okay?

Everything the detective told Green was true. In D.C., anyway, defendants typically do not have access to a lawyer until they arrive at the courthouse.

In this case, the D.C. Court of Appeals found that the detective’s statement to Green may have confused him:

. . . the Supreme Court has acknowledged the concern that can arise when “the reference to the right to appointed counsel [is] linked to a future point in time after the police interrogation . . . In some circumstances, such linkage can cause the advice of rights to fail to adequately apprise the accused of [the] right to have an attorney present if [the accused] chose to answer questions . . . That is so because a suspect who wants the assistance of a lawyer but is being denied such assistance might not realize that the correct way to respond is to refuse to answer questions unless and until a lawyer is provided. Unless that point is made explicit, such a suspect might instead conclude that the right to counsel is simply not being honored. (Internal citations and quotations omitted.)(Emphasis in original)

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Steven Kiersh represented Mr. Green at trial; Gregory Lipper on appeal. D.C. Superior Court Judge Judith Bartnoff presided at trial.