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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.

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Cross-Examination on Pending Charges

Can the defense question a State’s witness about pending charges? May the State question the defendant or defense witnesses on their pending charges? The Rules of Evidence allow impeachment by conviction of a crime under Rule 609, but nothing in the rules speaks to impeachment by evidence of pending charges specifically. The question comes up frequently enough that I wanted to write about it. Read on for the answer.

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