Heyman Law Blog

This section of my website is to keep you abreast of changes to law, specifically Florida law, as it may apply to you.

Police Searches: When do they need a Warrant??

Posted By on July 11, 2010

“Trucking”, a 1970′s song by the Grateful Dead, contains the cryptic line “if you’ve got a warrant, I guess you’re gonna come in”. While under most circumstances, the band was right, the majority of searches are conducted by police officers without a court authorized warrant. In speaking with clients in my practice, I have come to realize that most people have little understanding as to when a warantless search is justified and unfortunately when they unknowingly surrender their constitutional protections against illegal searches of their persons, possessions and homes.

The 4th Amendment to the U.S. Constitution protect citizens against “unreasonable” searches and seizures. While the courts have consistently held that warrantless searches are presumed to be unreasonable, exceptions to this rule have been carved out over time, based upon a balancing of individual rights versus the general public’s need for crime detection and public safety.

The most common exception to the warrant requirement occurs following arrest. Police may search an individual and the area within his immediate control at the time of arrest. When the person has been arrested while driving an automobile, this “area of control” has come to include the entire interior of the vehicle and the trunk.

Even without an arrest, police may search the interior of an automobile if they have probable cause to believe that the vehicle contains contraband or evidence of a crime which they have reasonable suspicion to believe has occurred. This is often the case when police conduct a traffic stop and detect the odor of marijuana emanating from the interior of the vehicle. The logic behind this exception is that automobiles are by nature, moveable, and while people still have an expectation of privacy inside their cars, a temporary detention and search based on probable cause is more efficient than having to expend the time to obtain a search warrant.

As an aside however, during my 15 years as a prosecutor, I drafted numerous search warrants for vehicles believed to contain large quantities of drugs, weapons or other contraband. A search warrant in those cases eliminated the need to have to later justify the warrantless search to the judge at a motion to suppress.

Where police are confronted with circumstances which suggest an immediate threat to public safety, no search warrant is required. This is commonly referred to as the “public safety” exception, most readily exemplified in circumstances where a firearm is believed to be hidden either on a person or in a place which threatens the safety of others.

Police are trained to request consent to search a person’s vehicle, home and physical person where they have a suspicion, but no articulable probable cause to believe that a crime has been committed or contraband present. So long as there is no evidence of overreaching or coercion, consent searches are valid. Unfortunately, many people, when confronted by a police officer at their door or roadside following a routine traffic stop, believe they must comply with the officer’s request to search. Remember, consent means just that – it is a right which only you can surrender.

If the police impound an automobile or other conveyance, they have the right to conduct what is often referred to as an “inventory” search. Technically, this intrusion is justified to protect the police from subsequent claims that they lost or destroyed property located inside the vehicle. As such, it is really not a “search” at all, but rather an effort to reduce police liability. Regardless, any evidence or contraband located during an inventory is admissible at all subsequent court proceedings.

The protection against unreasonable searches and seizures was included in the Constitution as a response to the British soldiers habit of breaking down the doors of the Colonials to search for evidence of crimes. Fortunately, that right continues to this day, except for the defined exceptions discussed herein which have been the subject of much litigation and court rulings for over 200 years. As times and technology change, there will undoubtedly be additional challenges to this essential constitutional protection. As a result, a working knowledge of the rights afforded by the 4th Amendment remains as essential today as it did in post-colonial times.

How to Choose a Personal Injury Attorney, or “Can he find the Courthouse?”

Posted By on July 7, 2010

In this day and age, consumers are literally bombarded with advertising messages from personal injury attorneys. Billboards, Yellow Pages, Internet sites and Television ads all tout how “aggressive” a particular law firm or attorney is in handling personal injury matters. While being “aggressive” is not necessarily a bad quality , you must look beyond the hype to choose the best lawyer to protect your interests and obtain a favorable result.

The truth is that many personal injury attorneys, including some of those who may advertise as being “aggressive”, rarely go to court or file lawsuits on behalf of their clients. Depending on the source, statistics indicate that approximately 80% of all cases settle before a suit is ever filed – hopefully for a fair value to the client. One thing is certain, the lawyer or law firm gets paid their 33% contingency and quickly moves on to the next case.

This dynamic can be especially true for the “high dollar” advertising law firms. Now, many of these firms provide professional and competent legal services for their clients. However, you as the consumer need some basic guidelines to keep in mind when selecting any lawyer to handle your personal injury case.

First, will the case be primarily be handled by the attorney or a non-attorney “case manager” or paralegal ?

Secondly, are you offered the opportunity to speak in person with the attorney before you sign the fee agreement? Many firms routinely send investigators to the potential client’s home armed with pen and fee agreement to sign the client up without any contact with the actual attorney that will handle the case. Most people would not hire a dentist or an architect in that manner. You should insist upon meeting your attorney in person before you sign anything.

Thirdly, does the attorney actually litigate cases, through trial if necessary, to seek the full measure of your damages ?? Many lawyers, when faced with an unacceptable settlement offer, refer the case to another attorney to file suit and handle the case through the courts. This is an approved practice and one which the attorney is required to inform you about at the time you sign the fee agreement. You should always inquire whether your case will be referred to another attorney you have never met should you decide to file a lawsuit.

You should always ask how much trial experience the attorney has. The insurance companies maintain a database which contains this information. They know which attorneys actually try cases and which ones always settle. Common sense dictates that those who always settle may not get full value for their clients.

Finally, is the attorney responsive to your inquiries? Are you sent copies of all important correspondence and pleadings filed in your case ? Does the attorney return you phone calls. There are times when a case manager’s answers regarding your case are sufficient. However, just as sometimes it is necessary to speak with your doctor rather than his nurse, there are times when you may require a answer or clarification from the attorney rather than a staff member. Do not settle for less.

People who have personal injury cases are often still physically and emotionally shaken by their accident experience when forced to seek legal counsel. Many have never hired an attorney in their lives. So long as you look past the barrage of lawyer advertisements and make an educated inquiry into the actual qualifications and experience of prospective attorneys, your chances of obtaining an informed and favorable outcome are greatly increased.

How to Choose a Criminal Defense Attorney

Posted By on July 2, 2010

        Being arrested or informed they are the subject of a criminal investigation can create one of the most stressful situations a person can face in their lifetime. Relationships with loved ones, present and future employment, and even one’s freedom are all placed in peril, often times in an instant. As a result, it is critical that the accused person obtains experienced and competent legal counsel to guide them them through the criminal process and obtain the best possible outcome which causes the least short and long term detrimental effects upon their lives.

But how does one go about choosing the best criminal attorney to handle such critical issues ???

EXPERIENCE IS CRITICAL, BUT WHAT KIND ?
         The phone book is littered with attorneys who advertise their many memberships in legal associations and experience in handling “thousands” of cases. While this information might appear impressive, the inquiry must go much further for a person to find the right attorney for their particular circumstances, charges and jurisdiction.
  Many advertisements contain statements that the attorney has handled “thousands” of cases. This is particularly true of attorneys who previously worked as a prosecutor or public defender. While not misleading, you need to ask the attorney to qualify this assertion. How many cases did they personally handle ? How many of those cases actually proceeded to a jury trial ?

Believe it or not, there are many attorneys who have actually “handled” hundreds or “thousands” of cases, but have tried only a small fraction of those cases. While there must be more to the inquiry than trial experience, no one would want to choose a surgeon to perform an operation who had only observed many such procedures in the past.

BACKGROUND CHECK RESOURCES
  All attorneys are required to be a member of their state’s Bar Association. In Florida, the Bar’s website, www.flabar.org, provides information as to the attorney’s membership, areas of specialization and if they have ever been the subject of any disciplinary proceedings.
  In addition, Martindale Hubbell, provides a peer rating for each lawyer for ethics,experience and competence. A “CV” rating usually indicates the attorney is new to the practice of law, usually less than 5 years. A “BV” rating indicates an ethical lawyer with average competence and experience, and an “AV” rating indicates the attorney has been recognized as “Pre-eminent ” in his practice with many years of recognized excellence by his or her fellow attorneys and judges. These ratings can be obtained at www.martindale.com.

LOCAL COUNSEL ? HOW IMPORTANT?
While the same substantive laws and procedural rules apply throughout the State of Florida, it may be advisable to focus your search on attorneys who have practiced extensively in the same jurisdiction where the charges are located. While familiarity with the local rules, procecutors and judges does not guarantee a more favorable outcome, it can foster a more streamlined and efficient handling of your case.

BUT HOW MUCH WILL IT COST ?   Most criminal attorneys work on a “set” fee basis, whereunder they require an up front fee payment for their services rather than an hourly rate. Most times this arrangement benefits the client, in that the attorney agrees to perform all work for that set fee for the entirety of the case. One distinction, which we employ at the Heyman Law Firm, is to quote a “two-tiered” fee under which a set fee is required up until the case is set for trial, and if the client wishes to proceed to trial, an additional fee is due.     Defense costs, customarily expended for subpoenaes, depositions, private investigators, etc is owed in addition to the attorney’s fee.

IS THE ATTORNEY RESPONSIVE TO CLIENT ?
Any client should expect their attorney to keep them reasonably informed regarding any significant developments in their case and respond to inquiries in a timely fashion. This can best be determined by referrals from previous clients and should be affirmatively promised by the attorney at the time of the inital interview.

Being arrested is both traumatic and potentially life changing. By retaining an experienced, respected and local attorney to guide the case through the criminal system, much of that intial fear and stress can be alleviated and a favorable outcome obtained.

What Happens at a Criminal Trial ?

Posted By on June 30, 2010

      In 28 years of practicing criminal law, I have handled over 125 jury trials as both a prosecutor and a criminal defense attorney. In those roles, I have learned that one of the most important misconceptions I have had to dispel is that almost nothing of what is depicted in film or television courtroom dramas is even close to reality.

     There are rarely any “surprise” witnesses presented, and I have never witnessed a spectator stand up in the rear of the courtroom and dramatically confess their guilt. That observation has in the past made me want to start a new career as a technical advisor to these shows, but then I realize that, for better or for worse, a true “reality” courtroom show would be rather boring, at least for the casual observer.

      All cases start with Jury selection, during which the attorneys for the State and the Defense are able to question the prospective jurors as to their personal backgrounds, their prior experiences with the criminal justice system ( as defendants, victims or witnesses) and, as much as possible inquire as to any biases they might have for one side of the case or the other.     

      Any candid attorney will admit that it is basically impossible to learn everything about a prospective juror in the short time allowed to make a perfectly formed opinion about a particular juror. Often times the best that can be accomplished is to weed out the jurors who are obviously biased or can be expected to be a “hard sell” when the time comes to decide in my client’s favor.

       Following jury selection, both sides are able to present an “Opening Statement” which outlines the respective positions of the parties. I firmly believe that the majority of cases are won or lost in Opening Statements.. This is the first real opportunity for the jurors to hear a logical explanation of the case from each side. There is nothing more powerful than a clearly stated view of the case which draws from the evidence that the jury will hear during the trial. There is nothing more satisfying than seeing a juror nod in agreement when evidence is presented in the trial which I told them would later come out to support our position in the case.

       Since in all criminal cases the prosecution has the burden of proof, they present testimony and evidence first, followed by the defense. A critical portion of the presentation of evidence can occur during cross-examination, which has been described by numerous legal scholars as the “locomotive on the train which seeks the truth”.

       At the close of all the evidence presented by the prosecution and defense, both sides are given the opportunity to present closing arguments to the jury. To any experienced trial attorney, this is the best part of the trial. During closings, each attorney must draw upon the testimony and evidence and apply it to the applicable law to persuade the jury that their theory of the case should prevail.

        Following the reading of the applicable law which the jurors must follow in reaching their verdict, the jurors are sequestered in jury room to deliberate. To the trial attorney, this is the worst part of the trial, for there is nothing more to be said, no more evidence to be presented until the jury alerts the court that they have reached a verdict. In Florida, unlike the dramatic scenes on television, the court clerk reads the verdict form, at which time the judge must examine the verdict for any flaws or inconsistencies. If none exist, the defendant is adjudicated either guilty or not guilty.
        Trial by jury is one of the fundamental constitutional rights we enjoy as Americans. We at the Heyman Law Firm have both the knowledge and experience to assert that right on your behalf.

How Much is my Personal Injury case worth?

Posted By on June 29, 2010

        When meeting with clients who have been injured, whether in auto accidents, slip and falls, medical malpractice or other cases, this is usually one of the first questions I am asked. While I certainly understand my clients’ interest in the value of their claim, my usual response is that much more investigation will need to be done and information gathered before I can properly answer their questions.
        There are numerous considerations which must be addressed in assessing the value of a personal injury claim. These include both past and future medical bills, lost wages, property damage and, if there are permanent injuries – damages for pain and suffering.
The first issue must obviously be to determine whether the client has suffered a personal injury as a result of someone else’s negligence. The other party does not need to be 100% at fault, but must have done or failed to do something which has resulted in injuries.
        Assuming those threshold issues have been satisfied, I must thereafter  obtain all medical records and bills incurred to date, together with opinions from the treating physicians as to what the expected medical expenses will be in the future. This is most important when the future prognosis involves long term treatment and/or surgery.
       Wage losses are determined in the same basic manner and are most easily calculated when a client is paid on an hourly basis. The trickier calculations come into play when the client’s income is commission and/or bonus based. Prior tax returns are helpful, but this determination must at times be bolstered by expert testimony. Even more complicated are those circumstances where a client, as a result of being injured, is unable to return to the same occupation. In those cases a rehabilitation expert is needed to determine what jobs the client can perform, the costs of retraining and the future income which can be expected.
       If a permanent injury has been sustained, the law permits an award of non-economic damages, or “pain and suffering”. These damages are more difficult to quantify, but can be established by developing evidence of how the injury has affected the client’s everyday life. If necessary, a “Day in the Life” video is prepared to document these changes.
       The determination of what a personal injury case is worth can take many months of investigation and evidence gathering. The best advice is to follow the course of treatment prescribed by the treating physicians and the requests of the attorney in obtaining all pertinent records to document both monetary losses and changes in your activities of daily living.
       Do not believe for a minute that the opposing insurance company is going to offer anywhere near the true value of your case in the absence of this information. At the Heyman Law Firm, we take pride in our efforts to properly document your case in order to demand full value for your claim to the insurance company, or if necessary, the jury that ultimately may decide your case.

Pulled over for a DUI ? Now what???

Posted By on June 28, 2010

      In my 28 years of practicing criminal law, first as a prosecutor and now as a criminal defense attorney, I have handled many hundreds of DUI cases. Approximately 30 of those cases have culminated in a jury trial. As a result of that experience, I have been asked numerous times about what happens at a DUI traffic stop and the legal and evidentiary consequences of decisions made at the time of the stop. The following are some of the more common questions and my general responses to each:

1. “SHOULD I SUBMIT TO A BREATH TEST??
      Under Florida’s “Implied Consent” law, by virtue of obtaining a driver’s license in Florida, each driver gives implicit consent to a chemical  test for alcohol or drugs. These tests can be used to obtain breath, urine or blood samples.In reality,unless an accident involving serious bodily injury occurs, a driver can refuse to take the breath and/or blood test. The penalty is that his or her driver’s license is immediately suspended for a period of 1 year for a first refusal and 18 months for a second refusal. Should you take the test ?? You must balance the risk of taking the test and possibly providing the state with basically all the evidence it needs to convict ( if the BAC is over a .08) versus losing your license automatically for 1 year or more and possibly providing your attorney with a fighting chance to either get the charge reduced or win at trial.
2. “SHOULD I TAKE FIELD SOBRIETY TESTS??”
      During the course of all DUI stops, the investigating  officer will request that the driver  submit to roadside sobriety tests. These are now more commonly ( and comically ) referred to as Field Sobriety “Exercises” by officers when testifying at trial, as if they are somehow therapeutic in nature. The bottom line is that the officer usually implies, and the driver misunderstands, that there is a legal requirement to submit to these tests. This is 100% incorrect. These tests are VOLUNTARY and there is no legal penalty for refusing them.  I believe such tests to be highly subjective, affected by how they are administered and just plain inaccurate. While the officer might also imply that a satisfactory performance on these tests might convince him to” let you go”, this is rarely the case.

3.” WHAT IS A FORMAL REVIEW HEARING??
      Florida law provides for a hearing at which you can challenge the basis of the traffic stop made by the police and their subsequent request for a breath or other chemical test. These hearings must be requested in writing within 10 days of the arrest and are held at the local DMV office. There is a $25.00 charge to request such a hearing. While in most instances you should demand such a hearing, please understand that in the vast ( 95% or more) majority of these hearings, the decisions of the police officer are upheld. This hearing does give your attorney the opportunity to get an early “peek” at the police report and ask the officer questions under oath which are recorded on tape and may provide for useful impeachment of his or her testimony at trial.

4. “HOW DO I GET A HARDSHIP LICENSE ??”
       If your license is taken by the police officer following your arrest, you can use the traffic citation as a temporary license for 10 days. Depending on whether you took the breath test or not, you can obtain a “Hardship” or “Business Purposes” license once you have completed an approved DUI Course.These courses are available through the National Safety Council. If a breath test was taken, there is a 30 day wait to schedule a hearing to get a business purposes license; if the test was refused, you must wait 90 days.

5. “CAN I GO TO JAIL AND FOR HOW LONG ?”.
The maximum jail sentence for a first DUI with no accident is 6 month. If an accident is involved, the maximum sentence is 6 months. If a 2nd DUI occurs within 5 years of a prior conviction, there is a mandatory 10 day jail sentence. For a 3rd DUI within 10 years, 30 days in jail is mandatory.

As an attorney I am constantly bombarded with information that can best be characterized as “street knowledge” and is uniformly wrong.  A DUI charge can have serious and long term effects on your family,you  job, and your freedom. Please do not rely upon what someone told you happened in their DUI case years ago in another state. At the Heyman Law Firm I am always available to answer your questions, and if you are charged with DUI, I will provide you with an experienced, aggressive and trial tested defense.

Slip and Fall ? Florida Legislators put the Burden back on You

Posted By on June 22, 2010

       Well, the business friendly legislature in Tallahassee has struck again. First they imposed restrictions on Worker’s Compensation claimants which basically drove claimants’ attorneys out of business and now they have enacted legislation which makes slip and fall injury cases nearly impossible to prove – as if Publix and other merchants needed any more advantages in defending cases where their negligence has caused injury to their patrons !!
       Currently, as a result of the 2001 Florida Supreme Court case Owens v. Publix Supermarkets,Inc., the burden is placed on the defendant store to establish that “reasonable care” was exercised in keeping the premises ( including floor surfaces) safe for customers. The Plaintiff is not required to prove that the store had actual or constructive knowledge of the dangerous condition that caused the fall. While this “shifting” of the burden was a change from previously existing law, it created a much more level playing field for Plaintiffs to prove damages and provided ample motivation for merchants to make sure they monitored the condition of their floors to avoid causing falls.
        Well, not to be outdone by the Courts, the Legislature ( after much lobbying by business interests, no doubt), decided to roll back the clock and once again place the burden on the Plaintiff to prove that ” the business had actual or constructive knowledge of the transitory foreign substance” located on the floor which caused the injury to the Plaintiff.
        Now how does the Plaintiff prove this ??? While many stores routinely have maintained “sweep logs” to document when floors were inspected in order to exercise “reasonable care” as required under the old law, I expect those records to be widely discontinued. And, from the Defendant’s perspective, Why Not??
        If someone falls in a store setting, they’ll be no evidence of inspections, but also no potential evidence that there was too long a gap between inspections. Juries will just have to take the store manager’s word that no foreign substance was seen on the floor prior to the fall. Good luck proving negligence now….in response however, you’d better believe that a store’s failure to document or discontinue the practice will prove to be persuasive fodder in arguing that the store was negligent. Since the new statute goes into effect on July 1, 2010, stay tuned as to the effects of the Legislature’s latest attempt to impose indirect tort reform at the expense of the injured.

DUI Checkpoints: A legal, but narrow lane

Posted By on June 22, 2010

         While scanning the letters to the editor recently in the St Petersburg Times, I came upon a letter which was highly critical of the fact that the local police had notified the public in advance of the location and times they were planning on setting up a DUI checkpoint to apprehend drunk drivers.
       While no one condones such behavior, there are numerous issues involved in how checkpoints can be operated while satisfying the constitutional rights we all share. These issues were addressed at length by the U.S. Supreme Court in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). In Sitz, the Court discussed the “balancing” test that must be employed in recognizing the state’s legitimate interest in eradicating the dangers posed by drunk drivers against the intrusion on an individual’s privacy rights which any checkpoint must entail.
       Like the letter writer, there are certainly many citizens who believe that police should pretty much be able to stop any driver at any time for no discernable reason. I still believe that the majority understands, as the Supreme Court has establish many times, that a traffic stop does invoke  fundamental 4th Amendment protections against unreasonable searches and seizures. As a result, the inquiry has always been whether the stop and detention is “reasonable” – a term not always easily defined or agreed upon even by constitutional scholars.
      In Delaware v. Prouse, 440 U.S. 648 (1979), entirely random traffic stops were struck down as unreasonable. By the time the Court decided Michigan v. Sitz, law enforcement agencies had developed fairly standardized practices in setting up checkpoints – one of them which included prior notification of the public as to the location and duration of the checkpoint operation..is this the most effective way to intercept drunk drivers ??                 Probably not .                                                                                                                                          However, statistics obtained even before the notification process became standard indicated that, regardless of how they were run, checkpoints were not very efficient and resulted in the arrest of less that 4% of all drivers that were stopped and screened for possible impairment. Quite frankly, the public is better served with having more specially trained DUI officers on the roadways at the times most drunk drivers will take to the roads and highways than a high profile ( and highly inconvenient to most drivers ) roadblock. Unfortunately in these times of reduced police budgets, it appears the roadblock is here to stay. As a word to the wise, don’t drink and drive and always designate a sober driver to take the wheel. Also, if you’re looking to get to your destination on time, read the papers and plan alternative routes if a roadblock is announced in your area.

Personal Injury Settlements in the Shadow of Medicare

Posted By on June 7, 2010

        I guess it was inevitable that the specter of the Federal government would cast its shadow upon settlement agreements between plaintiffs and private insurers, especially in these days of the perceived health care “crisis” and ever expanding Federal entitlement programs.
        Since the 1980′s, Medicare has been considered a “secondary” payer, meaning that all other sources of medical benefits were required to be exhausted before Medicare would pay for medical treatment. These primary sources of medical coverage included Worker’s Compensation carriers which would have to earmark funds for future medical care in any settlement where the beneficiary was or would shortly become eligible for Medicare benefits.
        Prior to 2009, plaintiffs’ attorneys did not have to concern themselves with such calculations and were only required to satisfy any Medicare lien for medical benefits paid to the client up to the time of settlement or judgment. Now, depending on the size of the settlement and the age and future medical needs of the client, those days may be gone forever. In the right case ( or wrong, depending on your perspective…) failure to “set aside” adequate funds from a personal injury settlement can have significant negative consequences for the client, and, at the least, a number of pointed questions for the plaintiff’s attorney.

      Sanctions could include the denial of future Medicare benefits to the client if the Feds believe that monies should have been “set aside” from a previous settlement for the services required at a later date. I can guarantee that no plaintiff’s attorney wants to receive the subsequent call from the client seeking answers after their Medicare coverage has been denied.

       From a practical standpoint, this problem should not arise from the run of the mill $10,000 auto liability settlement.The concern should be addressed in the cases which are similar to those which have previously required scrutiny in Workers’ Compensation cases, ie., those cases involving settlements greater than $25,000 or $250,000 in lifetime benefits where the client is eligible for Medicare within 30 months of settlement. In those cases, knowledge is power ( and safety).

      Since this new policy has created a veritable “cottage industry” of Medicare set-aside “specialists”, I will consider employing such an expert to accompany me to mediations involving cases which will attract future government scrutiny – as you see, the private insurer may also be on the hook for failing to insist on the proper “set-aside” account for future medical treatment related to the accident.
      The bottom line ?? Medicare has operated as the archetypical bloated bureaucracy for years and there is little chance that this expansion of its responsibilities will prove any different. Regardless, the fact remains that in the appropriate case involving the client who does or will shortly appear on Medicare’s radar, the Heyman Law Firm will take the necessary steps to protect both the settlement funds and the client’s entitlement to future Medicare benefits which have beeen earned as a result of many years of monthly, and involuntary, income deductions. Great country, huh????

Supreme Court rules that while “silence may be golden”, it doesn’t stop police interrogation

Posted By on June 4, 2010

     On June 1,2010, the U.S. Supreme Court issued its ruling in the case of Warden v. Thompson, case no. 08-1470, which, in a 5-4 decision, stated that in order for a suspect to assert his right to remain silent and right to counsel, he must “unambiguously” invoke those rights prior to,or during police interrogation.
     In that case, Thompson was read his Miranda rights during the a murder investigation in which he was a suspect. During a 3 hour interrogation, he never stated that  he did not want to speak with police nor wanted to speak with an attorney. His reponses to police questions during that 3 hour period were mostly limited to one word “yes” or “no” answers or nods of his head. Towards the end of the questioning, when asked if he “prayed that God would forgive him for the murder” he answered “yes”.
     That statement was thereafter admitted at his trial where he was convicted and received a life sentence. On appeal, the Federal District Court agreed that the statement was admissible and an appeal was therafter filed with the U.S.Supreme Court.
       Justice Kennedy, writing for the majority, stated that the requirement that a suspect unequivocally verbalize his intent to assert his 5th Amendment right to remain silent and/or 6th Amendment right to counsel was necessary to provide clear guidance to police officers on how to proceed after Miranda rights have been read to a suspect. In effect, a suspect only has to say a few “magic words” ( ‘silent’ and ‘attorney’ ) to halt any further police contact. This does not seem to be too much to ask..
     Justice Sotomayor, writing for the dissenters, stated that this ruling, in effect, “turns Miranda upside down”. She quoted previous cases since Miranda v. Arizona  which had imposed a “heavy burden” upon the police to prove that a suspect had waived his Miranda rights.
     Since “Dragnet” and “Law and Order”, everyone should be well aware of their constitutional rights to remain silent and to have an attorney present during police questioning. By merely requiring a person to verbalize that they want to assert either or both rights to the police does not appear too much to ask and should eliminate those circumstances where the suspect is being coy when confronted by police questioning.
     In my criminal practice, I routinely advise my clients to tell the officer that they want to talk with me prior to any further questioning. As referred to in the “Arrested” information page of my website, I stress that the proper place to speak with police is with me present in a comfortable environment – not alone and scared, by the side of the road in the middle of the night.
    This ruling by the Supreme Court  should provide ample reinforcement to my standing advice.