Breaking Down Your Miranda Rights: Where Do They Come From, And What Do They Mean?

"[A defendant] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."  Miranda v. Arizona , 384 U.S. 436 (1966). 

 Ernesto Miranda - Arrested on March 13, 1963, and charged with Kidnapping & Rape following a confession obtained after a 2 hour interrogation. At trial he was convicted based upon his own confession. On appeal, the Supreme Court held that his Fifth Amendment Rights were violated. However, Miranda was once again convicted at his second trial and sentenced to serve 20-30 years in the Arizona State Penitentiary.

Ernesto Miranda - Arrested on March 13, 1963, and charged with Kidnapping & Rape following a confession obtained after a 2 hour interrogation. At trial he was convicted based upon his own confession. On appeal, the Supreme Court held that his Fifth Amendment Rights were violated. However, Miranda was once again convicted at his second trial and sentenced to serve 20-30 years in the Arizona State Penitentiary.

In 1966, the United States Supreme Court’s Miranda v. Arizona decision gave rise to what has come to be known as the Miranda Warning. Prior to this decision, the Due Process clause of the Constitution was the only limitation on law enforcement conduct when conducting investigatory interrogations of suspects. During the Pre-Miranda era, law enforcement only needed to demonstrate that a confession was obtained voluntarily "under the totality of the circumstances." That is to say, that any statements made to law enforcement by a suspect could be used against that person as evidence at trial so long as the reliability of the statements was not called into question due to coercive or otherwise offensive law enforcement practices.

Since Miranda, law enforcement is constitutionally required to read a suspect his Miranda Rights before questioning him in custody. Miranda essentially expanded the Fifth Amendment privilege against self-incrimination beyond the scope of the criminal trial. However, the protections that Miranda affords does not extend to situations in which a person voluntarily speaks with the police. Furthermore, Miranda warnings are not necessary when a suspect is not "in custody." In many situations, law enforcement may attempt to question a suspect without placing them "in custody" in order to avoid instructing the suspect of his rights.

In the event that law enforcement fails to read a suspect in custody his rights prior to questioning, any statement or confession made will be excluded from evidence and will not be admissible at trial. This does not necessarily mean that the prosecution will dismiss the indictment against the defendant because they may have sufficient evidence notwithstanding the defendant's statements to proceed.

1. You have the right to remain silent.

The Fifth Amendment: No person shall…  be compelled in any criminal case to be a witness against himself.

No person can be compelled to be a witness against him or herself in any criminal proceeding in which they have been named as a defendant. As mentioned above, Miranda expanded this Fifth Amendment right to custodial interrogations. As such, if a suspect is being questioned they have the right to be free from providing any information that my lead to incriminating evidence. However, in order for a person to take advantage of this privilege they must make it clear to investigators that they are invoking their Fifth Amendment rights.

An adequate invocation of the right to remain silent occurs when the suspect says, unambiguously, that he wishes to remain silent, or that he does not wish to talk with law enforcement. A suspect should state the following in order to clearly invoke the privilege: “I invoke my Fifth Amendment right to remain silent, and I will not answer any more questions without my attorney present.”

2. Anything you say can and will be used against you in the court of law.

The Rules of Evidence govern the admissibility of statements which may be used as evidence during a criminal trial. As a general rule, an out-of-court statement made by others is considered hearsay and is not admissible as evidence. But under the Kentucky Rules of Evidence, a statement is not considered hearsay when it is offered as evidence against a party opponent (i.e. the Defendant). KRE 801A(b)(1). This exception to the Hearsay rule allows investigators to testify about statements that the Defendant made to them during the course of the investigation.

Rarely do a suspect’s own words to investigators benefit them at trial. Many law enforcement interrogation tactics are deliberately designed to elicit what may appear to be incriminating information. Although anything you say can and will be used against you in the court of law, your silence may not; the prosecution is prohibited from using the fact that you chose not to speak with law enforcement as evidence of your guilt at trial.

3. You have a right to an attorney.  

The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to… have the assistance of counsel for his defense.

The Sixth Amendment, like the Fifth, is another integral part of the Bill of Rights that affords protections to those facing criminal prosecution. Both the Sixth Amendment and Section 11 of the Kentucky Constitution guarantee the accused a right to an attorney when charged with a crime.

The right to counsel attaches when a person has been formally charged with a crime. At arraignment, the criminal defendant is advised of this right. Once the right is vested, law enforcement is prohibited from engaging in behavior that is deliberately designed to elicit incriminating information from the defendant without his or her attorney present.

4. If you cannot afford an attorney one will be provided for you.

The Commonwealth is required to make counsel available to indigent defendants at all critical stages of the criminal prosecution. If the defendant cannot afford to hire a private attorney, the court will appoint the Department of Public Advocacy to represent them. The defendant must fill out the AOC-350 Financial Statement, Affidavit of Indigency, and Request for Counsel prior to the appointment of the DPA.

While the Miranda Rights provide the accused with certain basic protections, like all rights, they can be waived. A waiver can be as subtle as continuing to discuss your case with law enforcement without specifically invoking your rights, and therefore, it is normally in your best interest to specifically invoke your Miranda Rights instead of continuing to answer law enforcement questioning. Before waiving your rights contact our office to consult with our attorneys about your case. 

Kentucky Medical Review Panels Explained

Last week the General Assembly passed Senate Bill 4, a measure that will greatly change the medical malpractice landscape in Kentucky, and Governor Matt Bevin is expected to sign it into law soon. The bill creates new entities known as “medical review panels” (hereinafter “MRPs”). Their purpose is to review any proposed medical malpractice claim, and render an opinion as to whether malpractice occurred, before a plaintiff brings their claim to a Kentucky court.

Supporters claim the legislation will weed out frivolous medical malpractice cases and help lower malpractice insurance rates for healthcare providers. Critics claim the legislation is an unconstitutional limitation on a citizen’s right to a jury trial and might run afoul of the “jural rights doctrine.” Both sides wholly expect the legislation will be challenged as unconstitutional, but they disagree as to the potential outcome of that challenge. This post is not intended to support or criticize the new law as a matter of policy, but to explain in great detail the new steps and challenges that must be considered in pursuing a medical malpractice claim in Kentucky.

Previously, a potential plaintiff in a medical malpractice claim only needed to file a complaint in a court of competent jurisdiction. Now a potential plaintiff must first bring a “proposed complaint” to the Cabinet of Health and Human services and pay a fee that will be determined by the Cabinet. Within ten days of receiving the proposed complaint, the Cabinet must serve a copy of the proposed complaint on all healthcare providers named as defendants. “Healthcare providers” is an expansively defined term, which includes hospitals, nursing homes, ambulatory services, abortion clinics, physicians, dietitians and nutritionists, paramedics and emergency service providers, radiologists, chiropractors, dentists, registered nurses, pharmacists, psychologists, optometrists, physical therapists, medical laboratories, speech pathologists, and social workers.

After the defendants receive notice, all of the parties may agree to waive the MRP requirement so long as the agreement is in writing. If at least one party to the action does not agree to waive the MRP, then the process moves forward. The MRP is led by an attorney chairperson. The chairperson does not have the ability to vote, but is in charge of managing the MRP. After all defendants are served with the proposed complaint, the parties are offered 20 days to reach an agreement as to who will serve as chairperson. If the parties are unable to agree within 20 days, a party can move the Cabinet to draw five names at random from a list of participating attorneys practicing in the Supreme Court district where the alleged malpractice occurred. The party making this request must pay a $25 fee. Beginning with the plaintiff, each party alternates striking an attorney from the list until only one name remains. The remaining attorney becomes the chairperson of the MRP unless that person objects to serving within 15 days. The selected chairperson must demonstrate good cause for why they are unable to serve before being released from service.

Once the chairperson is finally selected, they must craft two lists with three “natural person healthcare providers” (hereinafter “panelists”) on each list for a total of six potential panelists. The chairperson must take reasonable care to select potential panelists that are licensed in Kentucky and practice in the same field of medicine as the defendants if possible. The parties may suggest names of potential panelists, but the chairperson is not required to use those suggestions. The chairperson must send both lists to all the parties within five days of the chairperson’s appointment. The plaintiff will then strike one name from each list and the defendant will strike one name from each list. In the event there are multiple plaintiffs or multiple defendants, the side with multiple parties must exercise their strikes collectively. The two remaining names will become panelists and those two panelists must agree on a third panelist to serve. Any panelist that is selected may be excused for good cause or if there is a conflict of interest.

At the end of the selection process, each party has ten days to object to the composition of the panel. The chairperson will sustain or overrule the objection. Once the panel is finalized, the plaintiff has 60 days to submit all nonprivileged evidence. After the plaintiff has concluded submitting evidence, the defendant has 45 days to submit all nonprivileged evidence. No party may take the deposition of a witness without prior authorization from the chairperson, but the chairperson shall not unreasonably deny a party's request to take a deposition. At any point after it is formed, the MRP has the authority to subpoena records, call hearings, and consult with other medical professionals. If the MRP engages in any evidence gathering itself, the parties have a right to review this evidence. At all times during the evidence gathering stage the Circuit Court that would ordinarily have jurisdiction over the matter has limited jurisdiction to compel or limit the evidence submitted. For example, the Circuit Court could quash a subpoena duces tecum if the request is overly broad, or could compel the disclosure of documents being withheld.

After all the evidence has been submitted to the MRP it must render one of three opinions: that the defendant failed to act according to the applicable standard of care and that failure was a substantial cause of plaintiff’s injury; that the defendant failed to act according to the applicable standard of care but that failure was NOT a substantial cause of plaintiff’s injury; or the defendant did act according to the applicable standard of care. The chairperson and panelists on the MRP are entitled to fees for their work which should not exceed a total of $3,050, excluding travel expenses. Whichever party obtains a favorable ruling is responsible for paying these fees. No matter the outcome of the opinion, the plaintiff still has a right to pursue a medical malpractice claim in a court of competent jurisdiction after the final MRP opinion is rendered.

The chairperson has the authority to extend any of the above time periods for submission upon a motion seeking an extension for good cause. However, regardless of deadlines and all other time limitations, a final opinion must be rendered within nine months of the filing of the proposed complaint or a plaintiff may proceed with filing a civil complaint in a court of competent jurisdiction. If the plaintiff chooses to file a civil complaint, either party may move the trial court to admit the MRP opinion as evidence in the same manner a party would move to admit the testimony of an expert witness. Although media reports surrounding the passage of SB 4 suggested the trial court has discretion in admitting the opinion, those reports are inaccurate. “Upon motion, the trial court shall admit the panel’s opinion into evidence as an expert opinion, subject to cross-examination, upon a written finding that the evidence would assist the trier of fact and otherwise comply with the Kentucky Rules of Evidence.”

It is highly doubtful that any trial judge will determine the opinion will not aid the trier of fact, considering it is the expert opinion of three experts, and the MRP opinion should qualify under Daubert. Even though the opinion is “subject to cross-examination,” a written opinion cannot answer questions in open court. As a point of practice, the party seeking to admit the opinion may wish to subpoena a panelist and make them available to testify in order to avoid a hearsay objection, unless the report is considered a hearsay exception under KRE 803(8). The party which subpoenas a panelist is responsible for compensating the panelist for time spent testifying. There are other points of practice that may become an issue. For example, how does a plaintiff amend a proposed complaint after new evidence comes to light? Can a plaintiff add new defendants under the proposed complaint, and if so, what rights do the new defendants have in the panel selection process after the panel has been selected? Does the nine month clock restart if the proposed complaint is amended? Can a defendant strike the civil complaint if it differs from the proposed complaint?

In conclusion, the medical malpractice practice area is primed for a tectonic shift in Kentucky. It is unclear what types of constitutional challenges will be raised (although a challenge based on the jural rights doctrine is inevitable). It is also unclear if the panels will be available until a constitutional challenge is settled, and what effect the introduction of these panels will have on malpractice insurance rates in Kentucky.

The attorneys at Barsotti & Manley, PLLC, strive to inform our fellow Kentuckians of major shifts in Kentucky law. We serve Anderson, Boyle, Casey, Jessamine, Lincoln, Mercer, Washington, and Woodford Counties; including the cities of Danville, Harrodsburg, Lawrenceburg, Liberty, Nicholasville, Springfield, Stanford, and Versailles.

All's Fair in Love and War? Five Horrible Divorce Stories

broken heart.jpg

If your significant other forgot Valentine's Day, don't get too angry. Kentucky is a “no-fault” divorce state which means you can't use their forgetfulness against them in an attempt to secure more of the marital property. In fact, the best procedure if you feel your marriage is irretrievably broken is to come to an amicable agreement as to how to split the assets. Of course, a lot of times that is easier said than done. There are countless stories of people taking the divorce process too far, and a lot of times the only real winner is the attorney. For your Valentine's Day pleasure, below are 5 stories of bitter divorces that will make you happy that the only thing your spouse did was forget the flowers or candy.

The Old-School Tweeter:

A woman in China began to get suspicious of her husband when their pet bird, a Mynah bird, started saying unusual phrases. She heard the bird saying things like “I love you,” and “Divorce,” and “Be patient.” The bird would use these phrases more often when the couple’s phone rang, causing the woman to suspect her husband was having an affair. She even went as far as attempting to introduce the bird’s testimony in court. As a disclaimer, birds are not competent to testify in Kentucky, but your direct message tweets might be admissible in some proceedings.

The Home Wrecker (Literally):

A Cambodian man decided to call it quits with his wife of 40 years. However, instead of taking the matter to the Cambodian courts he decided to just take his half of the marital property. He and several friends packed his property into one side of the marital home and the non-attorney-construction crew divided the house by sawing it in half. Of course, because there was no legal dissolution of the marriage, the couple still co-own all the marital property. Keep in mind that in Kentucky, you and your spouse will continue to co-own property as well as debts until a formal dissolution decree is entered. If you are worried your soon-to-be ex will squander the marital property you should not delay in filing the necessary paperwork.

The Mama's Boy:

The honeymoon period for an Italian couple ended during the honeymoon when the new groom brought his mother along. The 39 year-old salesman secretly booked a room for his mother at the 5 Star Parisian retreat where the newlyweds were staying. The new bride had already had enough of her “suffocating mother-in-law” because she lived next door to their home in Italy. Her reason for filing the divorce paper so soon? “She wants a divorce because of her husband’s excessive emotional attachment to his mother.” That could probably cause an irretrievably broken marriage in Kentucky too. But keep in mind that grandparents have a right to grandchildren visitation in Kentucky, so you might not be able to get rid of your mother-in-law that easily.

The Taker-Backer:

Divorces can be upsetting. Sometimes the relationship gets so toxic a person might rather their ex just end up dead - or at least prevent their spouse from filtering out the toxicity. A doctor in New York thought he had found his perfect match when his wife of 11 years became sick and needed a kidney transplant. After failing to match her father and brother, it turned out that her soulmate also turned out to be her kidney-mate. He donated the organ in 2001, but maybe her new lease on life convinced her to seek greener pastures. She filed for divorce just 4 years later. The doctor then demanded his kidney back, or at least $1.5 million for it. A British woman did the same thing after finding out her sick husband wasn't too sick to carry on an affair. Kidneys, as well as all other organs, do not have a fair market value in Kentucky, but a broken heart might get pretty costly.

The Biological Warfarer:

Paying alimony can stink, sometimes literally. A New York man faced criminal charges in Arizona when he sent something extra with his alimony checks. He allegedly covered them in his feces. His former spouse moved to Arizona to escape his harassment but he continued to send her vulgar notes, as well as a picture of him holding a serrated knife. He was charged with sending hazardous materials through the U.S. mail and was released pending trial after posting a $35,000 bond. If you feel compelled to send fecal matter to your ex to display your true feelings, we would suggest you don't and that you stick with Emojis. Stay away from the gun Emojis though - that might be considered a threat.