Tuesday, July 12, 2016


We have been discussing the Miranda v. Arizona case recently and pondering the question of what that case actually does for a defendant who has been charged with a criminal offense.  We have talked about the fact that a suspect who is in custody must be advised they have a 5th Amendment  right to remain silent and that anything they say can be used against them in a court of law.  Moreover, because of Miranda such defendants have 6th Amendment rights to consult with a  lawyer prior to being interrogated, and if they can not afford one, one may be appointed.  Ok, it is routinely asked of me, "can I pick my own lawyer".  The answer is no.  It has long been  established by the Court in State v. Bible, 175 Ariz. 549 that a defendant is not entitled to counsel of choice or even a meaningful relationship with his or her #attorney.  Moreover, what about those situations where a defendant has various assets and would like to hire his own lawyer but the government has seized those assets. Well there is good news and bad news.  In a fairly recent case concerning the right to counsel and the government's pretrial seizure of a defendant's assets, the United States Supreme Court ruled on March 30, 2016, that a defendant has a 6th Amendment right to use her own "innocent" property to pay a reasonable fee for the assistance of counsel.  What say I about "innocent" property?  I will get to that in a minute.  This issue arose in a case entitled Luis v. United States.  A grand jury charged the defendant with paying kickbacks and other crimes.  The Supreme Court found that "the pretrial restraint of legitimate, untainted assets needed to retain a lawyer of choice violates the 6th Amendment.  The majority on the court rationalized and distinguished between tainted funds and innocent funds needed to pay for counsel.  Anyone who has been charged with transporting marijuana should know when funds are not "innocent".  If someone has been charged in such a crime and their car was used to transport the drugs the government swoops in and uses asset forfeiture laws to claim the vehicle.  Any cash found in the car or that has been alleged to have been derived from the drug deal is also swooped up under the asset forfeiture provisions of the law as being "tainted".  However, if there is cash that can be demonstrated having nothing to do with an illegal act, such cash should be termed "innocent" property.  Such funds may be used to retain counsel of choice.
     If you are charged with a crime, call The Law Offices of Randall J.Craig, PLLC at 480 767-0400 in Scottsdale, Arizona. You may also reach us via the web at www.randalljcraig.com or www.randalljcraig.blogspot.com.
     In the coming weeks we will continue to take a hard look at Miranda and examine the governments attempts to limit Miranda's impact on the criminal justice system.  For now, keep in mind the protections under the 5th and 6th Amendments to the United States Constitution and do not ever talk without consulting a lawyer.  


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