Legal Question in Criminal Law in California

Never Given Miranda Warnning when questioned, can case be dismissed?

I was recently arraigned on a 484(a). My only contact I ever had with the police was a month after the alleged incident via a phone conversation. During this conversation, I was never read my Miranda Rights, furthermore I was harassed by the decetive numerous times in her attempts question me. I have done some research, and found that I must be advised of these right prior to any questioning. Due to the fact that ''anything I say can and will be used against me in a court of law'' Should I not have been advised of right to remain silent and to an attorney before I answered the questions?? This decetives statement is the majority of the DA's case. Can it be thrown out, or the case dismissed?? Please help

Asked on 11/12/02, 7:58 pm

3 Answers from Attorneys

David Diamond Diamond & Associates

Re: Never Given Miranda Warnning when questioned, can case be dismissed?

Statements given while in custody are not admissible without Miranda rights. There seems to be issues here that we may need to explore. Please give my office a call at 310/277-1707.


Lawrence Wolf, Esq.

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Answered on 11/14/02, 2:05 pm
Benjamin Berger Berger-Harrison, A Professional Corporation

Re: Never Given Miranda Warnning when questioned, can case be dismissed?

A statement made by a defendant WHILE IN CUSTODY is not admissable unless he/she was first advised of his/her Miranda rights and then waived them. Because you were on the phone and NOT in custody, the D.A. will argue that your statements are admissable without a waiver of your Miranda rights.

You may have an argument that you were coerced into giving your statement; that you were in fear that the police would come and arrest you if you did not cooperate. There is probably case law on point and I would suspect that it is not in your favor. That is pure speculation on my part. Research must be done to know for sure.

If you can't hire an attorney, request a public defender. They are usually terrific. They're busy, but terrific.

Best of luck,


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Answered on 11/12/02, 8:10 pm
Robert Miller Robert L. Miller & Associates, A Law Corporation

Re: Never Given Miranda Warnning when questioned, can case be dismissed?

Thank you for your posting. As Mr. Berger pointed out, the U.S. Constitution 5th amendment requires that the police give "Miranda" warnings only where there is a custodial interrogation ... in other words, a questioning after you have been arrested and are in custody.

You may have other grounds to get the statement thrown out, including a motion to suppress evidence on other grounds, the "evidence" being your statement. There may be grounds for a dismissal based upon a lack of evidence sufficient to meet the elements of the crime charged, or lack of probable cause, but it's almost impossible to tell that from the limited facts you have room to give in your posting.

If you have questions, or would like help, please feel free to contact me at my office. I'm happy to help in any way that I can. You can email at [email protected], or call my office at 1-877-568-2977. Thanks again and best of luck.

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Answered on 11/12/02, 8:23 pm

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