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St. Cloud, Minnesota

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Nicole Bettendorf
Nicole Bettendorf
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Speak up or you might lose your Right to an Attorney

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On September 8, 2009, the Minnesota Court of Appeals issued its decision in State v. Chavarria-Cruz. That decision holds that when the police question a suspect who is taken into custody, that suspect’s right to speak to an attorney, per the Miranda Rights, does not apply if the police officer questioning the suspect does not hear the suspect’s request. In holding that the suspect’s right to counsel was not brought into play in this case, the court relied upon the police officer’s testimony stating that the suspect was very soft spoken and that the officer was not aware the suspect had used the word “lawyer” during the interview.

The suspect argued that his request for an attorney was sufficiently clear because it could be heard in the audio recording, and it was included in the transcript of that interview. The court, however, disagreed, stating that the audio recording was difficult to hear even when the listener was following the transcript and listening for that word. The court also noted that the suspect’s entire request lasted just one second and the word “lawyer” was not clearly articulated.

The United States Constitution and the Minnesota Constitution protect persons from compelled self-incrimination. When an individual is taken into custody or deprived of his or her freedom by law enforcement, and is subject to police questioning, that suspect has a right to the presence of an attorney. Once the suspect requests an attorney, all questioning by police must cease. However, after Chavarria-Cruz, police officers who do not, or at least say they do not hear the suspect invoke the right to an attorney, may keep questioning the suspect. Anything that suspect says, despite requesting an attorney can be used against the suspect in court.

If you are charged with a crime, your right to an attorney is one of your most fundamental and important legal rights. The right to counsel is a very complicated and ever changing area of the law, so you need to contact an experienced criminal defense attorney who understands the unique ramifications of this ruling.

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  1. Mike Bryant says:
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    I am still amazed that it was heard but not heard. A nod of the head, would that work.