Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

12/26/11 5:00 PM

Kenneth Vercammen & Associates A Law Office with Experienced Attorneys for Your New Jersey Legal Needs 2053 Woodbridge Ave. Princeton Area Edison NJ 08817 68 South Main St. 732-572-0500 Cranbury, NJ 08512 1-800-655-2977

By Appointment Only Personal Injury and Criminal Toll Free 800-655-2977 on Weekends 732-261-4005

Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

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1. Tell The Police Officer or Detective that you wish to talk to your Lawyer. Repeat this request to every officer who speaks to you.

2. Identify yourself, if asked. If the incident is related to a motor vehicle, produce your license, registration, and insurance card.

3. Beyond identifying yourself, give no other information. Answer NO other questions. SIGN NOTHING. If you are asked any other questions, reply politely, "I would rather not discuss it�.

4. Call your lawyer at the first opportunity.

NOTE: If you are arrested for Drunk Driving in New Jersey, you must give breath samples before you call your Lawyer. You are not required to do field sobriety tests such as walking a straight line, Remember: Even a fish would not get caught if they kept their mouth closed. OJ remained silent and is playing golf today. [Copyright 1985-1986 Alan Marain] The Fifth Amendment to the United States Constitution prohibits the use of involuntary

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Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

12/26/11 5:00 PM

statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher Kenneth Vercammen was the standard of beyond a reasonable doubt when the Middlesex County Bar Municipal court determines if Miranda has not been fully complied with. State v Yough 49 NJ 587, 600-601 Court Attorney of the Year (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988).

WHAT IS INTERROGATION? As set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998) Section 755, the United States Supreme Court in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987).

Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation http://www.njlaws.com/arrest_criminal_violation.html?id=9&a=

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Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

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of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flower.

In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that since the Defendant could not understand his Miranda rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220.

Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, the central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence. State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964).

The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently. If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void. If the suspect is suffering from a mental disability which renders him incapable of understanding his constitutional rights, then any http://www.njlaws.com/arrest_criminal_violation.html?id=9&a=

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Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

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waiver is void. The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs.

Where circumstances cast doubt on knowing and intelligent quality of alleged waiver of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super. 290 (App. Div. 1983).

Intoxication is grounds to suppress statements.

See e.g. Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication, his eyes glaring and had a strong odor of alcohol.

Statements made by defendant while in custody should suppressed.)

The court has always set high standards of proof for the waiver of constitutional rights Johnson vs.

Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality.

Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988).

At the Jackson- Denno hearing and at oral argument, we will explain through crossexamination and witnesses the involuntary nature of any statements the state intends to produce.

CALL KENNETH A. VERCAMMEN, ESQ. 732-5720500 For an Appointment

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Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

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About Kenneth Vercammen: Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on trial and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested administrative law hearings.

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Kenneth Vercammens Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutors Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Dont give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations. http://www.njlaws.com/arrest_criminal_violation.html?id=9&a=

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Arrest for a Criminal Violation and Right to Remain Silent Miranda Rights

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When your job or drivers license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

Contact the Law Office of Kenneth Vercammen & Associates, P.C. at 732-572-0500 for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.

D Diissccllaaiim meerr This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

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