Virginia Miranda loopholes make it all the more vital to embrace silence with the police

Virginia Miranda loopholes can be looked at cynically as an effort by those hostile to Miranda v. Arizona, 384 U.S. 436 (1966), to do an end-run against that landmark Supreme Court decision requiring custodial police interrogation to be preceded by warning the suspect of their Fifth Amendment Constitutional right to remain silent and Sixth Amendment right to an attorney. As a Fairfax criminal lawyer, I know that all judges are sworn to follow their oath to obey the Constitution, which includes having to fully follow the dictates of the highest court in the land, the Supreme Court. However, Supreme Court justices are not barred from chipping away at and even reversing their own precedents. At the end of the day, Miranda is a vital weapon for criminal suspects and criminal defendants, but is not foolproof. Never should a criminal suspect nor defendant think that their pre-Miranda statements are automatically protected against disclosure in court. That state of affairs often is more nuanced than that. Silence is what most reliably protects criminal suspects and defendants.

What do the commonwealth’s courts say about Virginia Miranda loopholes?

Why bother knowing the Virginia Miranda loopholes if you are going to remain silent with law enforcement officers? It is because such a large percentage of criminal suspects wag their tongues with cops that criminal defense lawyers need to know these loopholes, how to narrow them, and how to argue that those loopholes do not diminish the particular criminal defendant’s Miranda rights. Key loopholes around Miranda include certain police booking questions (Thomas v. Virginia, 72  Va.App. 560 (2020)) , questions geared towards immediately protecting public safety (Anderson v. Commonwealth, 279 Va. 85 (2010); see also my article here). and when suspect answers are not in response to questioning nor their functional equivalent (Timbers v. Virginia, 28 Va.App. 187 (1998) (addressing Rhode Island v. Innis, 446 U.S. 291 (1980)). Don’t let you and your criminal defense lawyer give up just because the prosecutor mentions any of the foregoing appellate opinions. A quality Virginia criminal defense lawyer will argue why the prosecutor’s evidence is insufficient to prove you guilty beyond a reasonable doubt. Your lawyer will also be ready to argue why your statements to the police should be excluded from evidence in the first place. 

Doesn’t Rhode Island v. Innis discourage police from reading Miranda rights to criminal suspects?

When courts give police an inch, many will take a mile, including with Virginia Miranda loopholes. When police delay reading Miranda rights to detained suspects or arrestees, that is more often intentional than an oversight. With Virignia Miranda loopholes, police are trained that unprompted self-damning blurts from suspects and the above exceptions do not require Miranda warnings. Cops know that Miranda warnings will actually lead some criminal defendants to clam up, when police want them to do the opposite. I cringed in law school reading the foregoing Rhode Island v. Innis opinion, where a Supreme Court majority okayed police intentionally drawing a confession from a suspect by complaining to each other in front of the suspect about how awful it would be if a case’s abandoned murder weapon getting in the wrong hands and causing more injury. That led Innis — who had already repeatedly asserted his Miranda rights — to volunteer to police to show them where to find the shotgun used in the murder.

Virginia Miranda loopholes do not enable booking questions to be a blanket protection for un-Mirandized police questioning

The foregoing Timbers Miranda loopholes decision from the Virginia Court of Appeals draws the line on letting police hide behind the booking questioning exception to Miranda, by reversing a two-count forgery conviction (from handing police false identification post-arrest) where the police only obtained Timbers’s admission that she was not the person named in those documents, after someone brought clothing to Timbers at the sheriff’s office and revealed that Timbers’s first name was different than Timbers had provided, and a deputy sheriff went to her cell to hemmer home what her real name was. Timbers confirms that this questioning was not protected by the booking Miranda exception, where she had already been booked and where the totality of the circumstances showed that the deputy sheriff’s purpose in asking such post-arrest questions went beyond booking purposes. and where the prosecutor failed to show that Timbers’s self-provided incriminating evidence about her true identity would have inevitably been discovered even without her admission. Walls v. Commonwealth, 2 Va.App. 639 (1986) (addressing the inevitable discovery doctrine).

Does my criminal defense lawyer need to be an intellect about Miranda and other aspects of Constitutional law?

Your Virginia criminal defense lawyer should not only be a great persuader who tirelessly pursues your cause, but ideally will also have the intellectual curiosity, acumen and ability to know and synthesize the many complexities and nuances of the laws (for instance with Virginia Miranda loopholes) and Constitutional provisions protecting criminal defendants’ rights in a way that brings the judge to the defendant’s side through clear, concise and sufficiently simplified arguments. I delight in skillfully knowing, analyzing and applying the relevant law to the most favorable evidence in my client’s case (while downplaying the unfavorable evidence). Most importantly, as a Fairfax criminal lawyer, I delight in obtaining the best possible results for my clients.

Fairfax criminal lawyer Jonathan Katz does not rest until he obtains your best possible defense against Virginia DUI, felony and misdemeanor prosecutions. You are bound to become significantly more knowledgeable and confident about your defenses by the time your first meeting with Jon Katz concludes. Call 703-383-1100 to schedule your free initial in-person confidential consultation with Jon about your court-pending case.