Does Miranda Apply When Defendant’s Lawyer is Present?

If you type “miranda” into the search box on this blog, it will return more than 50 posts covering a wide range of related topics: the meaning of custody, deficient warnings, knowing and voluntary waivers, ambiguous assertion of rights, special rules for juveniles, readvising and reinterviewing, public safety exceptions, and many, many others.

But I was stumped recently by a deceptively simple question that I had not heard before, and did not come up in those results: what if the defendant’s lawyer is present? Does an in-custody defendant still have to be advised of his Miranda rights before he can be questioned by police?

I did some digging, and the case law on this issue genuinely surprised me.

You Have the Right to an Attorney… This One Right Here

Custodial interviews of defendants in the presence of counsel are a routine occurrence in some types of cases like drug trafficking investigations, but this situation could arise in any case where a charged defendant has agreed to cooperate with the state and submit to an interview, or when a suspect is accompanied by his lawyer when he turns himself in and agrees to be questioned. In my experience, most officers advise such defendants of their Miranda rights anyway, and ask them to sign a waiver before beginning the questioning, just to be safe.

But that moment always struck me as a little odd:  does he really need to be advised that he has the right to remain silent or speak to an attorney when his attorney is sitting right here with him and advising him on whether to speak?

The state’s fear is based on what might happen if the defendant is not properly advised of his rights and then the plea agreement falls apart, or the defendant later refuses to testify as agreed, or new evidence emerges that alters the landscape of charges. Of course, if the defendant had an immunity agreement or made the statements during plea negotiations within the scope of Rule 410, then the statement might be excluded for other reasons. But in a typical case where the circumstances have simply changed and the state now wishes to use the custodial interview against the defendant, will the absence of a Miranda warning render the statement inadmissible?

Miranda Warning Is Not Required

Some jurisdictions have held that as long as the defendant had an adequate opportunity to consult with counsel before and during questioning, the absence of a formal advisement and waiver of those rights does not bar the admissibility of the statement. See, e.g., Commonwealth v. Simon, 923 N.E.2d 58 (Mass. 2010) (Miranda warnings “are not the only permissible way to protect a suspect’s right against self-incrimination in the custodial setting” and consultation with counsel before and during questioning “substitutes adequately for Miranda warnings”); State v. Vos, 164 P.3d 1258 (Utah App. 2007) (“We hold that there is no need for Miranda warnings prior to a custodial interrogation when an accused person has had the meaningful opportunity to consult with counsel and counsel is actually present during questioning.”).

The Simon court explained its reasoning by citing to Dickerson v. United States, 530 U.S. 428 (2000). Dickerson overturned a statute based on the old “totality of the circumstances” test for voluntariness, which Miranda had abandoned as vague and unworkable. But in doing so, the majority in Dickerson rejected the dissent’s view that “nothing else [other than Miranda warnings] will suffice to satisfy constitutional requirements.” Simon 923 N.E.2d at 68-9. In fact, the Miranda decision itself never said that the particular warnings were “constitutionally required” either. Id. at 68. On the contrary, Miranda held that “[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination].” Miranda v. Arizona, 384 U.S. 436 (1966). This is so because “the Miranda warnings are not an independent right, but serve as a safeguard of the underlying right against self-incrimination.” Simon, 923 N.E.2d at 68-9. Therefore, in a case such as this where the right against coercion and self-incrimination is adequately protected by the “fully effective substitute” of having counsel present, the traditional warnings are not required. Id.

Miranda Warning Is Required

Despite that strong authority, other jurisdictions have held that the presence of counsel is not an adequate substitute for Miranda warnings. See, e.g., State v. Joseph, 128 P.3d 795 (Hawai’i 2006) (“We conclude that a defendant must be advised of his or her right to remain silent even if there is an attorney present.”); State v. DeWeese, 582 S.E.2d 786 (W.Va. 2003) (holding that the “warning, as required by the Miranda decision, is an absolute prerequisite to interrogation” and “the mere presence of defense counsel at an interrogation does not negate the necessity for providing the warning against self-incrimination”).

The rationale behind this view is two-fold. First, it’s based on language in Miranda that said a defendant in custody “must” be advised of his right to remain silent and speak with an attorney before and during questioning, and these courts are taking that word at face value. Joseph, 128 P.3d at 810. Second, these courts view the right to remain silent and the right to consult with an attorney as separate and distinct, and find the idea of treating the exercise of one right as an implicit waiver of the other to be “intolerable.” DeWeese, 582 S.E.2d at 796.

What About North Carolina?

Based on my research (please correct me in the comments if I’m wrong) there has not yet been a clear ruling on this issue from the U.S. Supreme Court or North Carolina’s appellate courts.

But if our state follows the prevailing view among a majority of other jurisdictions, our courts would find that the presence of counsel does serve as an adequate substitute for Miranda warnings. See, e.g., State v. Bethel, 854 N.E.2d 150 (Ohio 2006) (“there is substantial authority for the proposition that Miranda warnings are not necessary when counsel is present”); People v. Mounts, 784 P.2d 792 (Co. 1990) (where counsel was present for the interview, “the absence of a Miranda warning does not require suppression of Mounts‘ statement”); Baxter v. State, 331 S.E.2d 561 (Ga. 1985) (“assuming even that the second interview amounted to a custodial interrogation, that the presence of appellant’s attorney provided an ‘adequate protective device’ in this case”); Collins v. State, 420 A.2d 170 (Del. 1980) (Miranda  warnings are “unnecessary and superfluous” when defendant has had an opportunity to consult with counsel and counsel is present).

As I forecast up above, when I first began looking into this issue, I assumed the minority view (defendant “must” be advised) would be more widely adopted. I was surprised by the relatively flexible language that the majority view managed to pull out of Miranda. Lesson learned – always go back to the source.

4 thoughts on “Does Miranda Apply When Defendant’s Lawyer is Present?”

  1. Any law enforcement officer worth his/her salt will still advise Miranda. What’s even funnier is when you advise THE ATTORNY their Miranda rights too and have then sign a form. Really throws them for a loop and off their game. Fun to watch their sphincter’s tighten up and them shifting to self preservation rather than that of their alleged client.

    • That’s funny that you find it funny. I have never been asked to sign such a form and would refuse to sign it if so asked. I am not giving up any right of my own – Miranda or otherwise – when I assist a client in cooperating with law enforcement.

    • why does it please you make an “attorny” squirm. is your goal justice and the truth or to make an “attorny” uncomfortable at the expense of the person being interviewed.?

  2. I think if a person has their attorney with them, and the person agrees to answer questions, it’s game on. Most attorneys that I have dealt with will interrupt the questioning if they don’t like the question or to ask to speak to their client before answering the question. Of course in most of those situations, the attorney knows their is substantial evidence to warrant a conviction, and they are trying to work out a deal for their client. If the attorney is worth anything, they have already prepped their client and instructed them what to answer and what not to answer. Either way, is Miranda rally necessary in those cases? I think not.


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