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Do the police have to give Miranda rights as part of a CDV arrest?

Do the police have to give Miranda rights as part of a CDV arrest?

Anyone who has ever watched a police TV show will be familiar with Miranda rights:

You have a right to remain silent. Anything you say can and may be used against you in Court. You have a right to consult with an attorney and to have that attorney present with you during questioning. If you cannot afford an attorney one will be appointed to you. You have a right to stop answering questions at any time.

To be valid the reading of the rights does not have to be in any certain order or be precisely worded or phrased.

The only criminal offense that I am aware of in which a Miranda advisement is required to be given is a South Carolina DUI. There is no requirement that Miranda advisements be given in a CDV arrest, but there are times when the failure of the police to properly Mirandize can create a defense for the defendant. To understand the relevance of Miranda advisements to a CDV case it is important to understand what Miranda does legally:

The Miranda advisements to a defendant relate to the admissability in trial of statements made by the defendant in response to police custodial interrogations.

In order for the police to be able to repeat in Court what a defendant said who was in police custody and responding to police questioning they must first have had to read the defendant their Miranda rights. Miranda does not apply to statements made to people other than the police, to statements voluntarily uttered by defendants or made before the defendant was in custody or under arrest.

Often times the statements or explanations offered by a defendant when being arrested for CDV end up being evidence against them. For this reason it is standard advice that anyone who is being arrested remain silent and wait until they consult with a lawyer before trying to give a statement to the police.

In defending criminal domestic violence cases I often find that my client's statements to law enforcement are prejudicial to their own interests. I consider whether or my clients Miranda rights were implicated and if so were their rights properly given. When I believe that Miranda rights were not given I move to object to any police testimony regarding statements made to my clients in response to police questioning after they were taken into custody.

Often times in a CDV trial the only witnesses to what occurred are the defendant and the alleged victim. The arresting police office usually didn't personally observe anything themselves. In these cases the two most likely sources of evidence to be used against the defendant will be the testimony of the alleged victim and the testimony of the officer repeating anything incriminating the defendant said. An objection based on Miranda can keep the Court from allowing the police officer to testify to that type of information.

It is an important part of CDV trial preparation to consider whether or not there are Miranda issues. If you are facing a charge of Criminal Domestic Violence in Columbia, South Carolina, contact the Law Office of James R. Snell, Jr., LLC, in Lexington, at 1-888-302-5840. Initial appointments are provided on a confidential and no-cost basis.


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